Please Note

The President of the panel hearing this appeal directs that the non-publication order of Sosna J., prohibiting the release of any information that would tend to identify the appellant’s surviving children, shall continue.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.T., 2013 ONCA 476

DATE: 20130716

DOCKET: C51067

Rosenberg, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. T.

Applicant (Appellant)

Timothy E. Breen for the Appellant

Alison Wheeler for the Respondent

Heard: December 5, 2012

On appeal from the conviction entered on September 3, 2009 by Justice Michael Brown of the Superior Court of Justice, sitting without a jury.

Rosenberg J.A.:

[1] The appellant, M. T., pleaded guilty to a charge of assault causing bodily harm and not guilty to a charge of manslaughter in respect of the death of his son P. T. He appeals from his conviction for manslaughter. The sole ground of appeal is that the proceedings should have been stayed as an abuse of process.

[2] The appellant’s application to stay proceedings originated in a history that goes back to the appellant’s first trial on charges relating to the death of his son. His conviction in 1998 for second degree murder, aggravated assault and assault causing bodily harm was ultimately set aside by the Supreme Court of Canada, in reasons reported at R. v. M.T., 2007 SCC 49, [2007] 3 S.C.R. 453. A new trial was ordered on the basis of fresh evidence discrediting the opinion of forensic pathologist Dr. Charles Smith, whose evidence had been essential to the prosecution’s case. As many in this province know, Dr. Smith was implicated in a number of wrongful convictions. A commission of inquiry into the pediatric forensic pathology system in Ontario was inspired by concerns with Dr. Smith’s forensic work and was led by Commissioner Stephen T. Goudge of this court (“Goudge Inquiry”).

[3] The appellant’s stay application was based on the fresh evidence filed at the Supreme Court of Canada and the findings of Commissioner Goudge in The Report of the Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen’s Printer for Ontario, 2008) (“Goudge Report”). The appellant alleged that the Office of the Chief Coroner for Ontario (“OCCO”) covered up Dr. Smith’s incompetence and misconduct, thus frustrating the appellant’s attempt in 2004 to successfully appeal his conviction for the murder of his young son. It was only in 2007, when fresh evidence was placed before the Supreme Court of Canada following a proper re-investigation of the appellant’s case, that the true facts about Dr. Smith and the role that the OCCO played were revealed. In the meantime, the appellant had spent many years in the penitentiary convicted of murder.

[4] For the following reasons, I would dismiss the appeal.

A. THE FACTS

[5] The facts and, especially, the chronology of events are extremely important to understanding the appellant’s argument. The recent procedural history in the Superior Court of Justice should also be noted.

(1) The Original Investigation

[6] On May 29, 1993, emergency personnel responded to a 911 call at the appellant’s home, where they found the appellant’s son P. T. on a bed without vital signs. P. T. was taken to hospital, where an emergency physician made a provisional diagnosis of Sudden Infant Death Syndrome (“SIDS”). Dr. David Chan performed an autopsy and found an old bruise to the left temple. He found no significant external marks of violence and, in particular, no skull fractures. He agreed with the diagnosis of SIDS. P. T. was just over 8 months old at the time of his death.

[7] Approximately one year later, the appellant’s second son, M. T. Jr., was brought to hospital with a fractured left femur. He was one month old. The authorities suspected child abuse, and, as a result, re-opened the investigation into P. T.’s death the year before.

[8] On July 20, 1994, a second autopsy was performed on P. T.’s remains. This autopsy was conducted by Dr. Charles Smith. While Dr. Smith was not able to identify a cause of death, he reported that he observed petechial haemorrhage consistent with an asphyxia type of death. Dr. Smith also found bone fractures that made him suspect non-accidental injury. The appellant was charged with second degree murder, aggravated assault and assault causing bodily harm. His wife was also charged with several offences.

(2) The First Trial

[9] At the appellant’s trial, the Crown relied upon circumstantial and expert evidence. Family members, neighbours and co-workers testified to the appellant’s impatience with, and rough handling of, P. T. They also testified to the inadequate care provided to P. T. and to injuries they observed. An expert in child abuse and pediatric radiology gave opinion evidence that P. T.’s past injuries were the result of abuse.

[10] Dr. Smith‘s testimony was based on Dr. Chan’s observations from the original autopsy. Dr. Smith testified that there was a recent skull fracture to the left parietal bone that may have been lethal and could have occurred within a couple of days to 10 minutes before death. Both the bruising that Dr. Chan observed to the left temple and the skull fracture could have been caused by a single event. As well, Dr. Smith testified that the deceased’s brain weight as recorded by Dr. Chan was 30 to 35% heavier than normal. The only possible conclusion that Dr. Smith could draw from this was that the baby’s brain was severely swollen. This was indicative of an impact to the head that, in turn, was consistent with a recent skull fracture. Dr. Smith also testified that the deceased’s dura adhered to the skull to a greater degree than normal, which may have indicated a previous injury. Finally, he found microscopic petechial haemorrhages in the strap muscle of the deceased’s neck, which could have been post-mortem artefacts from the autopsy itself, but were more likely caused by ante-mortem neck compression.

[11] Based on the above, Dr. Smith provided two explanations as to possible causes of death. The first was a blunt force injury to the head, possibly from a fist that caused the bruising to the temple, the skull fracture and the brain swelling. The second was asphyxiation caused by either neck compression (manual strangulation) or smothering, which could also be consistent with the head injury. But for the abnormal brain weight, he would have thought asphyxia the more likely cause.

[12] Dr. Smith testified that asphyxia could be caused by plastic film from a dry cleaning bag over the deceased’s face or someone pinching the infant’s nose and holding his lips together. He also gave his opinion as to how the head injury and smothering could be linked. The head injury could have made the baby very irritable and caused him to cry. “And the reality is that there are caregivers around who attempt to silence irritable children by holding a pillow over their face or by flipping them over and forcing their face into a pillow or mattress to keep them quiet, and in doing so asphyxiate them.” It was also his opinion that the asphyxia was a “prolonged episode”. He testified as follows:

If the cerebral edema is correct and was not caused by some antecedent event but was caused by the asphyxia, then the asphyxia had to be a prolonged episode. It had to be something which was either incomplete obstruction such as a pillow or holding the baby’s face onto a mattress in which they are struggling and you don’t get good airway obstruction, or it’s an intermittent phenomenon. The baby is asphyxiated, they are let go, they begin to breathe again, they’re asphyxiated some more in a process that occurs over ten or fifteen minutes, or half an hour, or an hour. Something like that.

[13] On June 12, 1998, the appellant was found guilty of second degree murder, aggravated assault and assault causing bodily harm. He was sentenced to life imprisonment for the murder, without eligibility for parole for 15 years, and to 7 years’ imprisonment concurrent for the assault convictions. His wife was convicted of criminal negligence causing death and failure to provide necessaries of life, and was sentenced to 5 years’ imprisonment.

[14] The appellant appealed his conviction to this court. That appeal was dismissed on October 28, 2004: R. v. M.T. (2005), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199. On June 9, 2005, the appellant filed an application for leave to appeal to the Supreme Court of Canada. This application was granted on October 20, 2005: R. v. M.T., [2005] S.C.C.A. No. 287. On March 27, 2007, the Supreme Court of Canada granted the appellant’s motion to adduce fresh evidence, in particular expert reports from two forensic pathologists who discredited the opinion given by Dr. Smith in the first trial. The appeal was heard on October 12, 2007, and on November 8, 2007 the Supreme Court of Canada allowed the appeal and ordered a new trial: R. v. M.T., 2007 SCC 49, [2007] 3 S.C.R. 453.

[15] The chronology of events leading up to the dismissal of his appeal by this court more than six years after the conviction, and continuing through to the appeal to the Supreme Court of Canada, is crucial to understanding the appellant’s argument on the present appeal. Much of this chronology is set out in the Goudge Report. In particular, it will be important to understand how concerns about Dr. Smith’s conduct and evidence in criminal cases came to light, and how the OCCO responded to those concerns. And, while other cases in which Dr. Smith’s evidence was challenged are not directly relevant to this appeal, they form an important part of the context. It will also be important to observe how the growing concerns with Dr. Smith’s work and the OCCO’s response to these concerns bore on the appellant’s appeal from his conviction, and influenced the actions of both prosecution authorities and defence counsel as more information came to be known.

(3) The Events Leading to the First Appeal in the Court of Appeal

Early concerns about the competence and objectivity of Dr. Charles Smith

[16] From 1981 to 2005, Dr. Charles Smith worked as a pediatric pathologist at Toronto’s Hospital for Sick Children. Although he had no formal training or certification in forensic pathology, he became involved in forensic pediatric cases.

[17] In 1992, Dr. Smith was appointed director of the newly established Ontario Pediatric Forensic Pathology Unit (“OPFPU”). The OPFPU was established pursuant to an agreement between the Hospital for Sick Children (“Sick Kids”) and the Ministry of the Solicitor General, and was composed of pathologists from Sick Kids who did work for the OCCO. The reason for his appointment appeared to be unrelated to his qualifications for the role – indeed, he had no specific training in forensic pathology at this time – but, rather, because of his interest in a role no one else wanted. As Commissioner Goudge observed in his report, Dr. Smith quickly came to dominate pediatric forensic pathology in Ontario. During this time, Dr. Smith’s superiors within the state hierarchy were Dr. James Young, the Chief Coroner for Ontario, and Dr. James Cairns, the Deputy Chief Coroner for Ontario.

[18] At least as early as 1991, concerns were voiced with the work of Dr. Smith in forensic cases. Commissioner Goudge observed that perhaps the first sign of concern with Dr. Smith’s work in forensic pediatric pathology arose in 1991, when Justice Patrick Dunn of the Ontario Court (Provincial Division) acquitted S.M. of charges in respect of the death of S.M.’s child on the basis that Dr. Smith lacked objectivity, failed to investigate thoroughly and neglected to keep adequate records. Such concerns with Dr. Smith’s work would continue over the next 14 years. An apt summary is provided by Commissioner Goudge, at p. 24 of the Goudge Report:

Throughout the 1990s, coroners, police officers, and Crown counsel brought a litany of concerns about Dr. Smith’s work practices to the attention of the OCCO. People complained repeatedly about Dr. Smith’s failure to produce reports in a timely fashion; his unresponsiveness; his carelessness; and the inconsistencies between his written reports, his pre-trial comments, and his sworn evidence. In many instances, nothing was done to respond to these concerns. When the OCCO did respond, it was mainly through Dr. Cairns’ informal verbal and undocumented requests to Dr. Smith that he try to improve, all of which were inadequate and had no effect.

[19] In January of 2001, the Crown dropped charges in two cases when it learned that several well-respected experts disagreed with Dr. Smith’s opinion in those cases. This event attracted media attention to Smith’s work. As a result, on or around January 25, 2001, Dr. Young and Dr. Cairns raised their concerns about this media attention with Dr. Smith, and gave him the option of resigning. They were evidently concerned about public confidence in the OCCO. Dr. Young told some reporters that Dr. Smith was no longer performing autopsies for the OCCO, and that there would be an external review of his work in several cases. It was Dr. Smith who requested this review.

[20] At this time, the appellant’s appeal had already been filed, although it had not yet been perfected. On January 31, 2001, counsel acting for the appellant on the appeal, knowing that cause of death would be one of the main issues on the appeal and having become aware that charges in two cases in which Dr. Smith had provided an opinion as to cause of death had been dropped, wrote Crown counsel handling the appeal and requested disclosure of any existing or pending inquiries, investigations or reviews into Dr. Smith’s work. Dr. Cairns advised Crown counsel that the OCCO was reviewing Dr. Smith’s work in the two cases in which the charges had been dropped by the Crown. This information was communicated to defence counsel in a letter dated February 9, 2001 from Crown counsel. Crown counsel stated that a wider review might also be undertaken. Crown counsel suggested that defence counsel contact Dr. Cairns for further information, but indicated he would also provide further information of which he became aware.

[21] Unbeknownst to the Crown or anyone else, only 3 days later, on February 12, 2001, Dr. Young stopped any external review of Smith’s work. Dr. Young would later explain to the Goudge Inquiry that the purpose of the review, as he saw it, was in consideration of whether or not to reinstate Dr. Smith. His reason for stopping the review was that he had decided not to reinstate Dr. Smith until after the resolution of a civil lawsuit brought by an accused in one of the cases that was dropped by the Crown. The first public announcement that an independent review had been delayed did not come until June of 2001, soon after an article in MacLean’s magazine questioned Dr. Smith’s competence and professionalism. The Crown was not told that Dr. Young had cancelled the review, even though the OCCO, between January and April 2001, was seeking the assistance of the Crown in identifying criminal cases in which Dr. Smith had been involved.

[22] In June 2001, Dr. Smith was reinstated for non-criminal autopsies. No one, including the Crown, was informed that Dr. Smith was no longer involved in the analysis of criminally suspicious cases.

The review of the appellant’s case by Dr. Cairns

[23] Between October 1, 2001 and October 19, 2001 there was an exchange of correspondence between newly-assigned Crown counsel, defence counsel and Dr. Cairns about the existence and scope of any review into Dr. Smith’s work. In a letter dated October 10, 2001, Crown counsel told defence counsel what Dr. Cairns had told her: that not every case Dr. Smith was involved in was being reviewed. However, she was prepared to request a review of Dr. Smith’s findings in the appellant’s case in order to allay defence counsel’s concerns. On October 19, 2001, this request was made to Dr. Cairns. By letter dated November 16, 2001, Crown counsel advised Dr. Cairns that the appellant’s appeal would be perfected shortly.

[24] A further exchange of correspondence took place during February of 2002. In a letter dated February 6, 2002, defence counsel asked Crown counsel for an independent peer review of Smith’s work in the appellant’s case, and sought disclosure of the number of cases that were in fact referred for independent review and the opinions of those independent experts. Crown counsel forwarded this letter to Dr. Cairns, and asked about the progress of the review.

[25] Dr. Cairns’ response to this exchange, as communicated by Crown counsel, is very important to this appeal. In a letter dated February 18, 2002, Crown counsel advised defence counsel of what she had learned from Dr. Cairns. First, that in 18 of 20 cases that had been reviewed, there was no difference of opinion with Dr. Smith. Second, that in the two cases in which there were differences, there was no suggestion that Dr. Smith’s opinion was based on incompetence or negligence; there was simply a difference of opinion on matters on which experts might disagree. Crown counsel’s letter also contained the following:

In fact, it is my understanding from Dr. Cairns that after the reviews, Dr. Smith was put back on the autopsy roster in June 2001. As far as the Coroner’s office was concerned, he was competent to conduct any autopsy. It was Dr. Smith himself who took steps to remove himself, voluntarily. Dr. Smith, in effect, recognized that there would be a challenge to him on each and every case. While this challenge might prove unfounded, it would significantly impact on the trial process and the efficient use of resources.

[26] In responding to defence counsel’s question regarding the number of independent reviews that had been undertaken, Crown counsel referred to the preliminary inquiry in the case of R. v. Kporwodu, which is discussed further below, and in which Dr. Cairns gave 5 days of testimony about some of Dr. Smith’s other cases. Crown counsel summarized that evidence, and concluded: “Dr. Cairns’ testimony shows that the reviews of Dr. Smith did not find him wanting.” She went on to say the following of defence counsel’s attempt to pursue the competency of Dr. Smith:

Your attack on Dr. Smith’s competence does not appear to be founded on any contrary medical opinion, and suggests an opportunistic attempt to deflect the spotlight from your client. You have offered no legitimate reason to support your request that the Crown invite the Court to set aside the jury’s verdict and order a retrial in this tragic matter.

[27] As it happens, the Goudge Report makes clear that all three representations made by Dr. Cairns, as repeated in Crown counsel’s letter to the appellant’s counsel, were misleading. First, there was no broad external review of Dr. Smith’s work. Whatever the scope of the proposed review, it had been halted by February 12, 2001. What the OCCO did conduct was what Commissioner Goudge described as a superficial, internal, mostly paper review of some of Dr. Smith’s cases. In addition, in June 2001, Dr. Blair Carpenter, the chief of pathology at the Children’s Hospital of Eastern Ontario, reviewed six of Dr. Smith’s non-criminally suspicious files in order to see whether Dr. Smith could return to the non-criminal roster. He concluded that Dr. Smith’s work on those six files did not give rise to any concerns.

[28] Second, there had been no specific finding made that Dr. Smith was neither negligent nor incompetent. Third, Dr. Smith had only been returned to the roster of pathologists doing non-criminal autopsies.

[29] Crown counsel’s letter to defence counsel dated February 18, 2002 was copied to Dr. Cairns. In addition, Dr. Cairns, in his testimony to the Goudge Inquiry, acknowledged that the information provided to Crown counsel and passed on to defence counsel was misleading. It is also clear that he knew that Dr. Smith had only been reinstated to the non-criminal roster. Nevertheless, he did not correct the misstatements.

[30] In July of 2002, another exchange of correspondence took place between the defence, the Crown and Dr. Cairns, inquiring about the review into the appellant’s case and the perfection of the appeal. From the defence’s perspective, it appears that the fact that the review results had not been reported was holding up the fresh evidence application. On July 15, 2002, Crown counsel requested the results of Dr. Cairns’ review as soon as possible, because the appellant’s matter and the results of the review would be spoken to in court in early August.

[31] On August 1, 2002, Crown counsel advised defence counsel that Dr. Cairns had completed his review, and had told her that he saw “no contradictions whatsoever” between the opinion of Dr. Smith and those of other experts, and that he had “no concerns”. While the parties were waiting for this opinion to be reduced to a report, this court ordered the appellant to confirm his decision whether or not to pursue a fresh evidence application by September 13, 2002. Crown counsel followed up with Dr. Cairns, seeking his report “as soon as possible” so that the appellant could meet that deadline. Dr. Cairns’ one-page report was eventually sent to Crown counsel on September 27, 2002, and disclosed to defence counsel on September 30. In it, Dr. Cairns writes that his review was based on the original autopsy report, the second autopsy report prepared by Dr. Smith, autopsy autographs, and transcripts of testimony from the appellant’s trial. Crucially, Dr. Cairns’ report concludes as follows:

The result of my review:

I have no concerns regarding the opinion given by Dr. Smith and see no reason what so ever [sic] for our office or the Crown Attorney to hire another expert.

[32] On October 11, 2002, defence counsel informed Crown counsel that, in light of Dr. Cairns’ report, the appellant would not be adducing fresh evidence.

[33] As it turned out, significant problems with Dr. Cairns’ report later came to light. Commissioner Goudge said this of Dr. Cairn’s report:

Dr. Cairns was wrong. Once experts reviewed the case, Dr. Smith’s opinion was sufficiently discredited by other pathology experts that the Supreme Court of Canada ordered a new trial for [P.’s] parents. As with his affidavit in Nicholas’ case, Dr. Cairns did not have the expertise to provide this opinion. A proper review required expertise in forensic pathology. Moreover, at the time Dr. Cairns provided this unqualified opinion, he was fully apprised of the serious concerns about Dr. Smith’s competence, integrity, and judgment arising from cases such as Jenna’s. This incident provides yet another example of the importance of experts understanding and respecting the limits of their expertise. As he candidly acknowledged at the Inquiry, Dr. Cairns had absolutely no business offering this opinion. [Emphasis added.]

[34] In the meantime, other events continued to keep Dr. Smith’s competency a live concern. In late 2002 and into 2003, the Kporwodu case was proceeding in the Superior Court of Justice. The presiding trial judge, Trafford J., ordered the Crown to disclose the OCCO file in Kporwodu’s case. When the appellant’s counsel learned of the order, he asked for the OCCO file in the appellant’s case to likewise be disclosed. Crown counsel obtained the file from Dr. Cairns and it was forwarded to defence counsel. In March 2003, defence counsel asked that the appeal be de-listed because of continuing concerns with Dr. Smith’s competence and objectivity.

[35] In June 2003, Trafford J. stayed the proceedings in Kporwodu for unreasonable delay. In his reasons, reported at R. v. A.K., 2003 CanLII 46118 (ON SC), [2003] 13 C.R. (6th) 71 (Ont. S.C.J.), aff’d (2005) 2005 CanLII 11389 (ON CA), 75 O.R. (3d) 190 (C.A.), Trafford J. referred to the independent review of Dr. Smith’s cases that the OCCO was meant to be conducting, and found that no systematic external review of Dr. Smith’s forensic work was taking place. Rather, Trafford J. found, at para. 137 of his decision:

Dr. Smith's work on criminal cases was reviewed on a case-by-case basis only when a Crown Attorney requested such a review. There were only a few requests by Crown Attorneys. When such a request was made, Dr. Cairns, Dr. Chiasson or Dr. McLellan reviewed the file to see if there were any obvious problems with Dr. Smith's work on the case. The Crown Attorney was then advised who, if anyone, should be consulted for a further expert opinion. The matter was then left with the Crown Attorney, to be handled within his or her discretion. If such an expert was retained by the Crown Attorney, any written report done by the expert was a report to the Crown Attorney and, generally, not to the Chief Coroner.

The appellant’s counsel came to learn that the appellant had been misled about the scope of any review into Dr. Smith’s work

[36] In August 2003, defence counsel learned that Dr. Smith was not, in fact, doing forensic autopsies. He wrote to Crown counsel, asking again whether there was going to be an inquiry into Dr. Smith’s criminal cases and his competence in those cases.

[37] In a letter dated September 15, 2003, based on information from counsel to the OCCO, Crown counsel answered defence counsel’s questions by reference to the findings of Trafford J. in Kporwodu.She went on to say that beyond a hearing into Dr. Smith’s work by the Health Professions Review Board; a past hearing into his work by the College of Physicians and Surgeons; and individual civil and criminal cases where the issue of Dr. Smith’s evidence and competence could be dealt with by individual judges, the Coroner’s Office was not aware of any additional inquiry into these matters.

[38] In a letter dated the following day, defence counsel voiced his concern that Dr. Cairns was not competent to provide the opinion he did, as he was not a pathologist. He asked whether an independent pathologist had ever reviewed the appellant’s case. Crown counsel replied, in part, as follows:

In your letter you suggest that I am in breach of my disclosure obligations. Throughout this process I have attempted to respond to your concerns. I requested Dr. Cairns to review Dr. Smith’s work in this matter in an effort to allay any concerns that you might have about the adequacy of Dr. Smith’s work. I invited you to participate but you chose not to. Dr. Cairns was competent to conduct the review that he did. You were aware of the nature of the review that I was requesting. Despite invitation you voiced no concern whatsoever prior to or during the review.

[39] The next significant correspondence references Crown counsel’s letter of February 18, 2002, in which Dr. Cairns had explained the scope of the OCCO’s review into Dr. Smith’s cases. Defence counsel’s letter to Crown counsel on September 25, 2003 shows that defence counsel had come to know that the representations in the letter of February 18, 2002 were misleading – defence counsel characterized them as deliberately so. Among other things, defence counsel alleged that he now knew that the independent review had not, in fact, been completed but had been suspended; that there had been no review of the appellant’s case; and that Dr. Smith was not doing forensic autopsies. In the letter, defence counsel again asked for an independent review.

[40] Crown counsel’s response the following day stated that defence counsel had been aware of the nature of the review conducted by Dr. Cairns, and not only had he not chosen to participate in the review but he had not raised any concerns about the review.

[41] In January 2004, the parties appeared in this court on a production motion seeking materials that had been before Trafford J. in the Kporwodu case. In dismissing the motion, in reasons reported at R. v. M.T., 2004 CanLII 60014 (ON CA), [2005] 23 C.R. (6th) 261, this court agreed with Crown counsel’s submission that the appellant had not offered anything to suggest that Dr. Smith’s medical opinions in his trial were open to legitimate debate. The court wrote, at para. 38:

I am satisfied that absent any basis upon which to doubt Dr. Smith's opinion in this case, evidence questioning his competence and objectivity in other cases could not possibly affect the verdict in this case and, consequently, could not be received as fresh evidence on appeal.

[42] Despite the conclusion reached by this court, correspondence from Crown counsel to defence counsel on January 14, 2004 shows that one of the members of the panel hearing the production motion suggested that the parties have an expert perform a completely independent review of Dr. Smith’s findings in the appellant’s case. While the motion was under reserve, and after considerable wrangling over who should conduct the review, the parties settled on Dr. Linda Norton of Baylor University, in Dallas, Texas.

[43] The record shows several weeks in which there was some apparent difficulty in assembling materials to be sent to Dr. Norton. Finally, on May 5, 2004 a letter from Crown counsel to defence counsel indicates that Dr. Norton required further materials. Supplementing the record provided to Dr. Norton would require further time, including time for Dr. Norton to review the materials. Defence counsel’s position on supplementing the record and, if necessary, requesting an adjournment was sought. Defence counsel’s response was sent the next day:

Further, to our telephone conversation yesterday and the various matters that we discussed, I am confirming that I am not pursuing the fresh evidence application as it relates to Dr. Norton. It is with regret that I do this but I see no alternative given the time frame involved and my client’s instructions to me that he cannot stand the emotional impact of another delisting.

[44] Consequently, the appeal proceeded before this court without any fresh evidence and was dismissed on October 28, 2004, in reasons reported at R. v. M.T. (2005), 2004 CanLII 34722 (ON CA), 190 C.C.C. (3d) 199. As recorded in those reasons, the Crown and defence had both relied upon Dr. Smith’s opinion to support their positions at trial. The Crown’s position at trial, set out at para. 84 of the appeal reasons, had been that Dr. Smith’s evidence could eliminate certain possibilities (such as disease and SIDS), and point to head trauma and/or asphyxiation as the most likely causes of death. The defence position was summarized in para. 85:

The defence relied on Dr. Smith's evidence to support three contentions. First, the defence relied on Dr. Smith's ultimate opinion that the cause of death could not be determined. Second, the defence relied on Dr. Smith to support the contention that P.T.'s death could not be attributed to any of the specific injuries he suffered and, particularly, could not be attributed to the skull fracture suffered shortly before his death. Third, the defence relied on Dr. Smith to undermine the reliability of any of the observations made by Dr. Chan. This was important to the defence because Dr. Smith relied on one of those observations, the weight of the brain, in advancing his opinions.

[45] The grounds of appeal were that the trial judge had mischaracterized a portion of Dr. Smith’s evidence, failed to exclude certain prejudicial evidence given by Dr. Smith and failed to summarize some of his evidence that was favourable to the defence. The court did not give effect to any of these grounds of appeal.

(4) The Events Leading to the Appeal at the Supreme Court of Canada

[46] On June 7, 2005, Dr. Barry McLellan, the new chief coroner for Ontario, ordered a formal review of a number of Dr. Smith’s criminally suspicious or homicide cases, including the appellant’s. Dr. Michael Pollanen conducted the review into certain aspects of the death of P. T. In a brief report dated August 13, 2005, Dr. Pollanen confirmed that there were four fractures, one to the right humerus (upper arm) and three to the parietal bones of the skull. All four fractures had healed. Dr. Pollanen concluded that his review agreed with the medical evidence presented at trial. At this time, his objective had been only to confirm the medical evidence presented by Dr. Smith at the trial.

[47] In a much fuller report dated October 5, 2006, Dr. Pollanen explained the pathological significance of his findings to the cause of death. Those findings may be summarized as follows:

• There was “clear and incontrovertible evidence” that the deceased suffered chronic physical child abuse.

• There was no definitive evidence of acute fatal injury of the head or neck. The recorded brain weight was not a sufficient basis to conclude that lethal cerebral edema (swelling of the brain) was present. There was no pathological evidence to support mechanical asphyxia as the cause of death.

• The fracture to the skull, which Dr. Smith had identified as having occurred shortly before death, had healed and therefore was not, in and of itself, a fatal injury.

• The cause of death should have been recorded as unascertained.

[48] Dr. Pollanen concluded with the following:

In the case of [P. T.], death occurred after a life of chronic physical child abuse, but our medical knowledge of the lethal event is elusive. However, this death cannot be regarded as a natural death or a case of sudden infant death syndrome (SIDS).

[49] The appellant’s counsel for his appeal to the Supreme Court of Canada retained Dr. Simon Avis to review P. T.’s death. His report, dated November 7, 2006, provides findings similar to that of Dr. Pollanen. Importantly, Dr. Avis noted that while his findings were consistent with Dr. Smith’s original autopsy report, Dr. Smith’s testimony under oath was different:

While superficially it appears that the above conclusions confirm the opinion of Dr. Smith as he stated in his autopsy (exhumation) report, it is important to compare the opinions in his report with the opinions he gave under oath. In his report he clearly stated that the cause of death was undetermined, a reasonable pathological conclusion consistent with current practice. Under oath he opined that the cause of death was either head injury or manual strangulation, based on the same pathological evidence he had used to conclude that the cause of death was undetermined. Dr. Smith also contradicted his own opinion; for example on page 2212 he stated that it was not possible to know exactly how old the visible skull fracture was. While this is true, one can exclude a recent fracture based on visual examination. On page 2259 he then suggested that the fracture was minutes to hours old if it was assumed [P. T.] died of a head injury. This is circular logic – the deceased died of a head injury therefore the fracture is recent, and we know he died of a head injury because there is a recent fracture. In fact there was no recent skull fracture so my conclusions contradict those opinions given by Dr. Smith under oath. [Emphasis added.]

[50] These opinions constituted the fresh evidence on appeal to the Supreme Court of Canada. The appeal was heard on October 7, 2007. The Crown agreed that, in light of the fresh evidence, the appeal must be allowed. However, it sought to have the court substitute a conviction for manslaughter for the murder conviction. Alternatively, it sought an order for a new trial on the murder charge, and asked that the appeal relating to the assault charges be dismissed. The appellant sought an acquittal on the murder charge and a new trial on the assault charges.

[51] The Supreme Court rejected both positions. In reasons delivered on November 8, 2007, the court allowed the appeal and ordered a new trial on all charges. As to the murder conviction, the court said the following, at para. 5:

It is conceded by the Crown that the fresh evidence should be admitted and that [M. T.]'s conviction on the murder charge cannot stand. With respect to that count, however, the Crown urges us to substitute a conviction for manslaughter instead of ordering a new trial. The Crown contends that the impugned evidence of Dr. Smith could have affected the jury's finding on the fault element, or mens rea, that distinguishes murder from manslaughter, but not on the actus reus, or element of causation common to both offences. We do not find this submission persuasive. On the contrary, we believe that the evidence of Dr. Smith may well have influenced the jury's conclusion on both essential elements of the murder charge -- that Mr. [T.] caused [P.]’s death and that he did so intentionally.

[52] But, the court also rejected the appellant’s submission that he should be acquitted of murder in light of the fresh evidence. As it said at para. 7:

Both appellants, on the other hand, seek acquittals on the counts of murder and criminal negligence causing death, and urge us to order a new trial only on the remaining counts. We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acting reasonably, could find the appellants guilty of the homicide-related offences of which they were convicted at trial. [Emphasis added.]

[53] In elaborating why it felt that there should be a new trial on all counts, the court, at para. 13, relied also on the following considerations, among others: the central importance of Dr. Smith’s evidence to the Crown’s case at trial; the Crown’s position throughout the trial as to the relationship between the charges; that Dr. Smith’s evidence is now conceded to be unreliable; that Dr. Smith testified not only as to [P. T.]’s cause of death but also as to his previous injuries, going to the other counts; and that it was impossible to determine the effect that the evidence of Drs. Smith and Chan had on the jury’s evaluation of both appellants’ credibility.

[54] It is apparent from the court’s reasons, and from the transcript of the oral argument, that the appellant did not apply for a stay of proceedings before that court.

(5) Recent Procedural History in the Superior Court of Justice

[55] The appellant’s application for a stay of proceedings was heard by Sosna J. in June of 2009. At that time, the appellant was appearing for a second trial on an indictment charging second degree murder, aggravated assault and assault causing bodily harm. His wife, A. T., also brought an application to stay the proceedings against her. She was facing charges of manslaughter, criminal negligence causing death and failing to provide the necessaries of life. In reasons delivered on July 2, 2009, Sosna J. dismissed the applications.

[56] On September 3, 2009, the appellant appeared before Brown J. on a new indictment charging manslaughter and assault causing bodily harm. The charges against A.T. were stayed at the request of the prosecution. The appellant pleaded not guilty to manslaughter and guilty to assault causing bodily harm. The trial proceeded by way of a “memorandum of proof”, accompanied by various exhibits. The appellant acknowledged that those facts were capable of establishing his guilt on the charge of manslaughter. The appellant was convicted of both offences. The trial judge accepted a joint submission of a suspended sentence and one year probation. By that time, the appellant had served almost nine years of the life sentence for murder.

[57] The parties agree that it is open to the appellant to appeal his conviction for manslaughter pursuant to the replacement indictment on the basis that Sosna J. erred in failing to enter a stay of proceedings of the murder charge set out in the first indictment.

B. The Reasons of the Application Judge

[58] The application judge gave lengthy and careful reasons for dismissing the stay application. He reviewed the proceedings in the appellant’s case as well as other cases involving Dr. Smith. He noted the role played by the OCCO during the appeal process, including the misleading information provided by Dr. Cairns in February 2002 (mistakenly referred to as October 2001). The application judge made several important findings of fact. The medical evidence provided by Dr. Smith at the appellant’s trial was deliberately calculated and directed to secure convictions. The appellant was convicted because the Crown and the jury erroneously relied on Dr. Smith’s reputation and misguided diagnosis. His evidence in this case was not an anomaly, but was consistent with his history of securing convictions in suspicious pediatric deaths, notwithstanding medical evidence to the contrary. The OCCO sheltered and protected Dr. Smith for the sake of preserving the institutional reputation of its organization. Nevertheless, there was no misconduct on the part of Crown counsel, either at the trial or appellate levels.

[59] The application judge reviewed and applied the law of abuse of process as set out in R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391. He held that the fairness of the new trial for murder would not be compromised because the Crown would not rely on Dr. Smith’s evidence. Rather, Dr. Pollanen and Dr. Avis would give the pathology evidence, and would testify that the cause of death could not be determined.

[60] The application judge then asked whether irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were to continue. He noted that a stay of proceedings is intended as a prospective remedy. It must appear that the state misconduct is likely to continue or that carrying the prosecution forward will offend society’s sense of justice. Only in exceptional cases may the past misconduct be so egregious that the mere fact of going forward in light of it will be offensive.

[61] Despite finding that the state, through Dr. Smith, had mistreated the applicants and observing that the court was “greatly disturbed” by the stain that Dr. Smith and the OCCO had left on the administration of justice, the application judge concluded that the past misconduct was not so egregious that a continued prosecution would cause “irreparable injustice” to the judicial system’s integrity. He observed that the Crown had an evidentiary basis to proceed with the prosecution even without medical evidence as to the cause of death.

[62] The application judge then balanced the compelling public interest in having a trial on serious criminal allegations involving the death of an infant against the gravity of Dr. Smith’s misconduct toward the applicants. He was satisfied that the community’s sense of fair play and justice would not be offended by a new trial.

[63] The application judge also considered the alternative submissions that the appellant only be tried on manslaughter or that the Crown be barred from using the evidence of Dr. Chan. He rejected both remedies. Given the ultimate outcome of the proceedings, the availability of these alternative remedies is not relevant to this appeal.

C. ANALYSIS

(1) The Standard of Review

[64] The appellant submits that the decision of the application judge is entitled to deference, and should only be interfered with where there is a legal misdirection or the decision is clearly wrong and amounts to an injustice. The Crown adds that the misdirection must be either an error of law or a palpable and overriding error in the assessment of the facts. I agree with these submissions: see Tobiass at para. 87 and R. v. Bellusci, 2012 SCC 44 at paras. 17-9.

[65] At the same time, this matter’s recent procedural history complicates the process of review. As mentioned earlier in these reasons, the pre-trial application for a stay of proceedings dealt with by Sosna J. was in respect of the appellant’s indictment on a charge of murder. Accordingly, the application judge dealt with the case on the basis of whether proceeding with a retrial of a murder charge would be an abuse of process. However, the appellant has now been found guilty of manslaughter as set out in the replacement indictment laid before Brown J., pursuant to a negotiated agreement between the parties. The question therefore arises whether, in considering if there was an abuse of process in this case, this court should apply the relevant tests to a trial for murder – which was the anticipated proceeding before Sosna J. – or a trial for manslaughter. I agree with the respondent that this appeal should ask whether proceeding with a homicide prosecution was an abuse of process in this case.

[66] The appellant submits that the application judge was clearly wrong. He submits that the application judge failed to consider that the appellant’s conviction for murder resulted directly from Dr. Smith’s perjury. He also failed to consider the consequences that flowed from the murder conviction in terms of the appellant’s treatment in the penitentiary and on appeal. He submits that the appellant would have been classified differently if convicted only of manslaughter and would have likely obtained bail pending appeal if only convicted of manslaughter. He also submits that in measuring the state misconduct, the fact that he may have been guilty of crimes involving abuse of the deceased is irrelevant.

(2) The Law of Abuse of Process

[67] Helpful summaries of the doctrine of abuse of process are found in the recent decisions of R. v. Nixon, 2011 SCC 34, 2 S.C.R. 566 and R. v. Regan, 2002 SCC 12, 1 S.C.R. 297. Those cases identify two categories of abuse of process. The first, and more common, category is engaged by prosecutorial conduct affecting the fairness of the trial; the second, the residual category, is engaged by prosecutorial conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process: see Nixon at para. 36.

[68] In Regan, the Supreme Court explained that either category of abuse of process requires two criteria to be satisfied before a stay can be imposed. First, the applicant must show that the prejudice caused by the abuse will be perpetuated by a trial or by its outcome, and second, he must show that no other remedy is reasonably capable of removing that prejudice. The court explained the rationale for these requirements in the following way, at paras. 54-56:

The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O'Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings" (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91).

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay.

[69] The Regan court, at para. 57, also instructed that close cases may engage a third criterion:

[T]here may still be cases where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered. This is the stage where a traditional balancing of interests is done: "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits". In these cases, "an egregious act of misconduct could [never] be overtaken by some passing public concern [although] ... a compelling societal interest in having a full hearing could tip the scales in favour of proceeding" (Tobiass, at para. 92).

[70] More recently, the Supreme Court of Canada in Nixon suggested that the balancing of interests is a central concern that defines the concept of abuse of process and its remedy. The court reached back to R. v. Conway, and pointed out that the Conway court, at p. 1667, summarized both abuse of process and the remedy for it in these terms:

[W]here the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

The centrality of a balancing exercise is evident in this description. In addition, this court in R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at para. 58, held that where it is the residual category that is engaged, a court will generally find it necessary to balance the interests called for by the third criterion.

[71] In the criminal context, abuse of process is concerned with state action. On this appeal, the respondent sought to draw a distinction between Dr. Smith and the OCCO on the one hand, and actors connected with the prosecution, such as police and Crown counsel, on the other. The respondent submitted that abuse of process is only concerned with the conduct of the prosecution, and would not be engaged by the perjury or inappropriate conduct of a witness, even if that witness were a state actor.

[72] I take Crown counsel’s point that neither Dr. Smith nor the actors in the OCCO were directly part of the prosecution, as such. However, the respondent’s submission fails to sufficiently engage with the role played by the OCCO in the investigation of a suspicious death and, thereafter, in the prosecution of an accused. The nature of the relationship between Dr. Smith and the OCCO, and between these actors and the criminal justice system, is a factor that must be considered as an essential aspect of the context in this case.

[73] Dr. Smith was not simply a prosecution witness. He conducted post-mortem examinations under a warrant issued pursuant to the Coroners Act, R.S.O. 1990, c. C.37, at s. 28. Dr. Young and Dr. Cairns oversaw his work; both of them, as Chief Coroner and Deputy Chief Coroner for Ontario respectively, occupied statutory positions pursuant to ss. 4(1) and (2) of the Act. The results of Dr. Smith’s post-mortem examination would have been reported not only to the regional coroner and Chief Coroner, but also to the Crown Attorney: s. 28(2). Later, as an expert witness testifying on the pathological evidence in this case, Dr. Smith played a critical role in the appellant’s trial. Finally, as we have seen, the conduct of actors at the OCCO became very important to the progress of the appeal.

[74] In my view, given the role played by these state actors in this prosecution and in the appeal, their conduct can give rise to an abuse of process and, in an appropriate case, could result in a stay of proceedings. This is despite the fact that on the facts as found by the application judge, and as Mr. Breen acknowledged in oral argument, the Crown too was a victim of their actions.

(3) Application to this Case

[75] The appellant does not rest his case on the first category of abuse of process. There is no suggestion that the appellant could not have had a fair trial either for murder or manslaughter once the accurate pathology evidence, in the form of testimony by Dr. Pollanen and Dr. Avis, was put before the trier of fact. This case then turns on the second category. I have no difficulty in finding that an abuse of process was made out in this case under the residual category.

[76] The abuse of process lies in the combined effect of the perjured evidence given by Dr. Smith, and the misleading representations made by the OCCO, particularly by Dr. Cairns, which delayed the discovery of Dr. Smith’s misconduct and risked frustrating the appellant’s appeal to this Court. Such conduct falls easily within the description of abuse of process as conduct that contravenes fundamental notions of justice and undermines the integrity of the judicial process.

[77] Dr. Cairns, in particular, in a misguided effort to protect the integrity of the OCCO rather than ensure the proper investigation of pediatric deaths and see that justice was done, provided misleading information to Crown counsel and, through her, to the appellant. This had the effect of interfering with the appellate process. From November 2001 until October 2002, defence counsel had been led to believe that there would be, and then that there had been, an independent review of Dr. Smith’s work in the appellant’s case, and that the opinion provided by Dr. Smith was correct. Most significantly, as a result of the opinion given by Dr. Cairns, which it turned out he was not competent to give, the defence abandoned its first attempt to adduce fresh evidence in October 11, 2002.

[78] The issue, therefore, is whether this abuse of process requires a stay of proceedings in accordance with the test set out in Regan, Nixon and Tobiass. In this court, the appellant argues that a stay of proceedings was the only appropriate remedy because the past misconduct was so egregious that the mere fact of going forward in the light of it would be offensive: see e.g. Tobiass at para. 91. He submits that this is such a clear case that it is unnecessary to engage the third criterion, the balancing of interests.

[79] I do not agree. Like most cases involving the residual category, uncertainty remains in this case after considering whether the prejudice will be perpetuated and whether any other remedy is reasonably capable of removing that prejudice. I say that for the following reasons.

[80] Regrettably, our courts are not immune from perjury by state actors, as this case shows. But, perjury alone, especially when it has been uncovered while the case is still in the system, will rarely meet the test for a stay of proceedings. More troubling is the impact that Dr. Cairns’ conduct may have had on the appeal proceedings. Nevertheless, his active participation was effectively limited to the misleading correspondence of February 18, 2002 and the review performed on the appellant’s file. While it later became clear that he was not qualified to perform a pathology review, the record does not disclose that he was aware of this at the time. In addition, Dr. Cairns’ conduct was manifested only for a relatively short period of time.

[81] By September 23, 2003, defence counsel was aware that there had been no independent review of Dr. Smith’s testimony in the appellant’s case. Defence counsel was also aware of concerns about Dr. Smith, as revealed in the Kporwodu case. Despite this, the appellant chose not to proceed with any fresh evidence. It is possible to view this decision as the result of Dr. Cairns’ misconduct. That is, that because of the delay engendered by Dr. Cairns’ conduct, the appellant was deprived of any realistic opportunity to present fresh evidence on his first appeal to this court. However, in my view, this is not borne out by the chronology.

[82] Following the motion for production in January 2004, the appellant had the opportunity to obtain an independent review at the suggestion of the court that heard the production motion. An independent reviewer was selected, and the process was initiated. However, the review by Dr. Norton was abandoned by the appellant for reasons not attributable to Dr. Cairns’ conduct, which by then was known. The appellant could also have obtained his own expert opinion, as was later done prior to the Supreme Court of Canada hearing. Consequently, the application judge was not clearly wrong in concluding that the past conduct of state actors in this case, while disturbing, was not so egregious that a continued prosecution would cause irreparable injustice to the integrity of the judicial system.

[83] In the particular circumstances of this case, as egregious as the conduct of Dr. Smith and the OCCO was, the prejudice caused by the state misconduct would not necessarily be manifested, perpetuated or aggravated through the conduct of the second trial or by its outcome. This is undoubtedly a close case. Dr. Smith’s perjury in the first trial was perpetuated through the first appeal, which was dismissed because there was, at the time, no fresh evidence. However, by the time of the second trial, the perjury had been uncovered and the jury would have been able to reach its verdict by reference to the expert evidence of Dr. Pollanen and Dr. Avis.

[84] Given the persisting uncertainty as to the appropriateness of a stay of proceedings in this case, it seems to me that the balance of interests favoured proceeding with the prosecution. The serious nature of the state’s misconduct, not only through Dr. Smith’s perjury, but also the misrepresentations made by the OCCO and the failures of oversight documented in the Goudge Report, is an important consideration in the balancing of interests. As the application judge said, the cost of this history of events was “the loss of public confidence both in the Coroner’s Office and the administration of justice”.

[85] However, it is necessary to look at the entire context in undertaking the balancing exercise. First, the history of this case originates in the exceptional misconduct of Dr. Smith. The failures in oversight and the delayed discovery of the full scope of Dr. Smith’s misconduct had systemic causes. The systemic issues have been addressed by the review of the Chief Coroner and the Goudge Inquiry, which have restored public confidence both in the system for the investigation of pediatric deaths and also in the administration of justice.

[86] While the misconduct of certain state actors amounted to an abuse of process, neither the trial Crown nor appellate Crown counsel were implicated in that misconduct. In fact, while this case is exceptional, so has been the response of the Ministry of the Attorney General. As Dr. Smith’s misconduct and that of the OCCO was revealed, the Ministry responded to individual cases by consenting to the re-opening of cases that had resulted in a miscarriage of justice even where many years had elapsed since the prosecution and where the accused had originally pleaded guilty.

[87] Allowing the appellant to avoid prosecution for the physical abuse that led to his son’s death would be a disproportionate response. Dr. Pollanen’s description of this case should be remembered:

In the case of [P. T.], death occurred after a life of chronic physical child abuse, but our medical knowledge of the lethal event is elusive. However, this death cannot be regarded as a natural death or a case of sudden infant death syndrome (SIDS).

As grave as the state misconduct was in this case, the balance tips in favour of a trial on the merits. Given the robust state response, the continuation of this particular prosecution cannot be seen as offensive. Holding a trial for a murder for which an evidentiary foundation existed would not amount to condoning the state misconduct in this case, and would not be damaging to the administration of justice. I have not been persuaded that the application judge’s conclusion was clearly wrong.

[88] The fact that the appellant had served over 8 years in custody is also obviously an important consideration in the balancing of interests. In arguing that a stay of proceedings was required in this case, the appellant placed considerable emphasis upon R. v. Taillefer; R. v. Duguay, 2003 SCC 70, 3 S.C.R. 307, where a stay of proceedings was ordered for one of two accused because by the time an appeal on the basis of state misconduct was allowed, he had served an amount of time in prison similar to the appellant in this case.

[89] The facts of Taillefer and Duguay are complex. The case involved two accused, Taillefer and Duguay, who were both convicted of first degree murder. Both appealed to the Quebec Court of Appeal. Taillefer’s appeal was dismissed. Duguay’s appeal was allowed, and the court ordered a new trial for second degree murder. Following the appeal, Duguay pleaded guilty to manslaughter and was sentenced to 12 years’ imprisonment. In the meantime, the Poitras Commission[^1] uncovered wrongdoing on the part of both the police and the Crown in respect of Taillefer and Duguay’s cases, in failing to disclose information that could have undermined the credibility of prosecution witnesses, suggested avenues of investigation and bolstered the defence of alibi. Taillefer and Duguay appealed again to the Court of Appeal, which dismissed their appeals. By the time the appeal was allowed by the Supreme Court of Canada, Duguay had served 8 years of his 12 year sentence. The court ordered a new trial for Taillefer, but stayed the proceedings in the case of Duguay. The appellant submits that Duguay’s case is similar to his, especially because, like Duguay, he has served 8 years of his sentence.

[90] In my view, Taillefer and Duguay does not support the granting of a stay in this case. In considering what remedy to provide to Duguay, the Supreme Court canvassed a number of possible remedies. It held that a new trial for second degree murder would be unjust, because it would amount to punishing Duguay for succeeding in having his guilty plea and his conviction on the reduced charge of manslaughter quashed. The court then held, at para. 128, that a new trial for manslaughter would also be unjust, because it would “be an unfair burden for the appellant Duguay, who has already, in effect, been punished for that offence”.

[91] In Duguay’s case, the material that was not disclosed went to his factual innocence. It would be an unfair burden to require that he go through a new trial that, because of the non-disclosure, would end in his acquittal. There would also be unfairness if he were to be convicted of manslaughter, despite the availability of the previously undisclosed material. The court described the nature of this unfairness, at para. 128, in these terms:

A resumption of the proceedings, so that the trial judge could find, at the end of those proceedings, that the accused has already effectively spent the time in prison that is normally imposed in the case of any term to which he might be sentenced if he were convicted does not seem to be in the public interest in any sense, and places an excessive burden on the appellant. At some point or other, in circumstances like these, a stay of proceedings seems to be virtually inevitable.

[92] In the appellant’s case, Dr. Smith’s perjury went principally to proof of mens rea. The fresh pathology evidence does not show that the appellant could not be convicted of murder. There remained a significant circumstantial case for murder, particularly based upon the evidence of abuse that the deceased suffered before he died. As the Supreme Court of Canada observed when it ordered a new trial in the appellant’s case, at para. 7:

Both appellants, on the other hand, seek acquittals on the counts of murder and criminal negligence causing death, and urge us to order a new trial only on the remaining counts. We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acting reasonably, could find the appellants guilty of the homicide-related offences of which they were convicted at trial.

[93] In these circumstances, retrying the appellant for homicide would not have placed an unfair burden upon him. Balancing the interests favouring a stay and those favouring a trial on the merits in this troubling case ultimately favours a trial.

DISPOSITION

[94] Accordingly, I would dismiss the appeal.

Released: MR “July 16, 2013”

“M. Rosenberg J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. S.E. Pepall J.A.”

[^1]: Quebec, Commission Poitras. Rapport de la Commission d'enquête chargée de faire enquête sur la Sûreté du Québec. Québec: La Commission, 1999.