Court of Appeal for Ontario

Date: 2018-02-07 Docket: C51004

Judges: MacFarland, Pardu and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

O'Neil Blackett Appellant

Counsel

James Lockyer, for the appellant

Roger A. Pinnock, for the respondent

Heard: January 29, 2018

On Appeal

On appeal from the conviction entered on August 30, 2001 by Justice David Watt of the Superior Court of Justice, sitting without a jury.

By the Court

[1] Background

[1] This is another appeal that arises as the result of the reinvestigation of cases where Dr. Charles Smith provided opinions and evidence as to the cause of death in children.

[2] On February 8, 1999 the appellant was babysitting his 13 month old daughter, Tamara at the child's mother's apartment in Scarborough while the mother was out doing errands. At 2:00 p.m. the mother returned to find the child lifeless in her playpen. Resuscitative efforts were unsuccessful and the child was pronounced dead shortly after her arrival at Scarborough Grace Hospital.

[3] Dr. Smith opined that the child had died as a result of a "mechanical type of asphyxia" likely caused as the result of neck compression or possibly blunt force applied to the abdominal/chest area accompanied by a choking episode. He dismissed the possibility that the child died from aspiration of stomach contents or any other accidental or unexplained cause.

[4] The appellant was charged with second degree murder and was ultimately committed to stand trial on that charge. Eventually he pleaded guilty to manslaughter and was sentenced to three years and three months imprisonment in addition to the 15 months of pre-trial custody. The appellant has served his sentence.

[5] On September 15, 2009, the late Justice Rosenberg of this court granted the appellant's application for an extension of time to file an appeal from his conviction. Before this court the appellant seeks to have his guilty plea set aside, the manslaughter conviction quashed and a new trial on the charge of manslaughter.

[2] Jurisdiction to Set Aside Plea

[6] This court has the jurisdiction to set aside a plea on appeal where the appellant establishes that there are valid grounds for doing so and it is in the interests of justice. In our view this is one of those cases.

[3] Facts

[7] The appellant is now 41 years old. After graduation from high school in the late 1990's he met Valda Thomas. She lived in his neighbourhood and had two children from a prior relationship. The two severed their relationship in mid-1997. Tamara was born on January 18, 1998. In September of that year, Ms. Thomas told the appellant he was Tamara's father. He began to visit, provide some financial support and on occasion babysit Tamara and her sisters.

[8] Tamara had a history of breathing difficulties and intestinal problems. On December 30, 1998 she was hospitalized overnight for high fever, gastroenteritis and dehydration.

[9] On January 20, 1999 Tamara suffered a fractured right femur while in the appellant's care at Ms. Thomas' home. The first paramedic on the scene described the appellant as an anxious parent who showed concern and tried to comfort the child as her leg was being splinted. He told medical personnel that the child had been in her wooden crib and her leg had become entangled in its spindles. Police, called by hospital staff to investigate, determined the crib to be unsafe; the injury was ruled accidental. The child was placed in a hip spica cast which she was still wearing when she died.

[10] The Children's Aid Society (CAS) was notified and Tamara's case was referred to the Suspected Child Abuse and Neglect (SCAN) team at the Hospital for Sick Children. Ms. Thomas refused to co-operate with the investigation while the appellant was co-operative with the CAS and tried to persuade Ms. Thomas to be also. The investigation was ongoing at the time of Tamara's death.

[11] In the days following her release from hospital Tamara became ill; she was vomiting and began losing weight in the days prior to her death.

[12] On February 8, 1999 the appellant had spent the day with Tamara. On Ms. Thomas' return from doing errands Tamara was found lifeless and cold to the touch in the playpen. There is a dispute on the evidence about whether the appellant tried to prevent Ms. Thomas from calling 911 but a call was made. The appellant was described as distraught and confused when police arrived and he was performing CPR on Tamara. The appellant showed police the playpen where Tamara had been found and pointed out to them the stains on the bedding which he thought indicated that the child had thrown up while sleeping. He denied causing harm to the child.

[13] The appellant told police the child had suffered from constant diarrhea and vomiting since coming home from the hospital. Since being in the cast "there was a problem with her laying on her back, because she always used to throw up whatever we gave her". Before noon the appellant put Tamara in her playpen with a bottle of chocolate milk which she drank until falling asleep. Other than the problems described above, the appellant told police that he did not note any other signs that the child was unwell.

[4] Dr. Smith's Evidence

[14] As noted, at the preliminary inquiry Dr. Smith opined that mechanical asphyxia had caused Tamara's death. He opined on several hypothetical mechanisms that may have caused the death including smothering and strangulation in addition to those already noted. He particularly emphasized other injuries found on the child at post mortem including fractures of both left and right femurs and several rib fractures.

[5] Initial Reviews and the Guilty Plea

[15] Concerns about Dr. Smith's work began to arise in 2001. The Crown sought an independent review or Tamara's case and Dr. Dowling, Chief Medical Examiner in the province of Alberta was retained. Although some concern was raised in Dr. Dowling's first report about Dr. Smith's conclusions; it was generally supportive.

[16] Dr. James Ferris, the head of Pathology at Vancouver General Hospital and former Chief Forensic Pathologist of British Columbia was retained by the appellant to review Dr. Smith's findings. In his May 3, 2001 report he disputed some of Dr. Smith's conclusions and doubted his interpretation of others.

[17] In a second report dated June 7, 2001 Dr. Dowling stated:

"The best I am able to do, as a pathologist, is express my concern that I do not see a clear cut underlying cause of death."

[18] Fifteen months after the appellant was committed for trial – and two weeks prior to the commencement of his trial on the second degree murder charge, the Crown offered to withdraw the second degree murder charge in exchange for the appellant's plea of guilty to unlawful act manslaughter and a term of imprisonment of four years on the manslaughter conviction.

[19] A number of factors came into play in the appellant's decision to plead guilty to manslaughter. Of particular significance was the impact he thought Dr. Smith's evidence would have on the jury. That together with the fact that a jury was unlikely to be sympathetic toward him because the case involved the alleged murder of an infant and that in his opinion and that of his lawyer he would not be an effective witness on his own behalf. It was in these circumstances, that despite his lawyer's admonition that he not plead guilty to something he did not do, he nevertheless instructed his lawyer to agree to certain facts that were read into the record when his plea was taken including:

Tamara Thomas died of asphyxia on February 8, 1999. She was 13 months old. This asphyxiation was precipitated by O'Neil Blackett in frustration forcefully trying to feed the child with sufficient violence to cause vomiting and choking. He then left her either unconscious or entering unconsciousness, unable to breathe, and she died.

Dr. Charles Smith of the Hospital for Sick Children performed an autopsy on February 9, 1999. He found evidence of several injuries, but no anatomical cause of death. In particular as they related to the cause of death, he found:

• A bruise and a small tear to the frenulum, inside the upper lip;

• A deep hemorrhage to the left sternomastoid muscle, not externally visible;

• Pulmonary hemorrhages consistent with asphyxia.

[20] And of course Dr. Smith ultimately concluded the death of Tamara to be a result of asphyxia.

[21] Filed by way of fresh evidence on this appeal are the affidavits of the appellant and his trial counsel, Stephen Bernstein which explain why the appellant pleaded guilty to manslaughter despite always insisting that he did nothing to cause Tamara's death.

[6] Fresh Evidence: Dr. Smith's Errors and Subsequent Reviews

[22] In April 2007, it was learned that Dr. Smith had made errors in some 20 files that were reviewed by the Office of the Chief Coroner of Ontario including the case of Tamara Thomas.

[23] Since that time, as the fresh evidence discloses, Dr. Milroy had prepared in December, 2007 a detailed medico-legal report in which he was critical of Dr. Smith's autopsy report and his conclusion that asphyxia was the cause of death. Dr. Milroy's detailed findings are set out in his report filed as part of the fresh evidence on this appeal. He concluded the cause of death was "unascertained".

[24] Dr. Milroy repeated in his evidence before the Goudge inquiry, his view of Dr. Smith's conclusions as outlined above and concluded there was insufficient evidence to support a definitive cause of death.

[25] Both Dr. Jack Crane, State Pathologist for Northern Ireland and Dr. Michael Pollanen, Chief Forensic Pathologist for Ontario supported Dr. Milroy's opinions and were critical of Dr. Smith.

[26] At the request of counsel, Dr. Milroy in 2013 prepared a further report and in that report concluded that Dr. Smith's conclusion that asphyxia was the cause of Tamara's death was not supported by the autopsy findings. He could neither exclude a natural or an unnatural cause of death.

[27] Dr. Michael J. Shkrum of the London Health Sciences Centre in his report dated April 12, 2013 came to a similar conclusion. He concluded inter alia:

1. The use of the term "asphyxia" to designate the cause of death in this case is inappropriate. Asphyxia is a mechanism of death in which hypoxia or lack of oxygen arises from a specific case.

2. Although there are "mechanical" causes of asphyxia which interfere with breathing (e.g. smothering) or blood flow to/from the brain (e.g. strangulation), there are no definitive findings which allow the death of Tamara Thomas to be linked to a specific type of mechanical asphyxia. The findings cited or observed by Dr. Smith are either non-specific of have plausible alternative explanations.

3. In my opinion, the cause of death is "Unascertained in a child who acutely aspirated while being treated with hip spica cast for a femur fracture and who also has multiple healing fractures."

[7] Fresh Evidence Admitted

[28] The appellant seeks to have admitted as fresh evidence:

1. Backgrounder prepared by the Chief Coroner of Ontario (November 1, 2005)
2. Backgrounder prepared by the Chief Coroner of Ontario (April 19, 2007)
3. Dr. Christopher Milroy: Autopsy Report Review Form (Dec. 2006)
4. Dr. Christopher Milroy: Medico-Legal Report prepared in October, 2007.
5. Extracts from Dr. Milroy's Testimony at the Goudge Inquiry
6. Dr. Pollanen's Memorandum prepared for the Goudge Inquiry
7. Extracts from the Goudge Report
8. Report of Dr. Milroy dated February 8, 2013
9. Report of Dr. Shkrum dated April 12, 2013
10. Affidavit of Stephen Bernstein sworn September 10, 2014
11. Affidavit of Appellant sworn October 11, 2017
12. College of Physicians and Surgeons (Ontario) v. Smith, 2011 Carswell Ont. 2589

[29] The Crown fairly does not contest the admission of this evidence nor dispute its content.

[8] Crown's Position

[30] In para. 23 of its factum the Crown notes:

Dr. Smith's conclusion that asphyxia properly described the cause of death in this case is reflected in the agreement statement of fact tendered in support of the plea. It is now well understood that Dr. Smith's opinion in this regard cannot be relied upon.

The respondent accepts that in the circumstances of this case, Dr. Smith's flawed opinion as to the cause of Tamara Thomas' death played a significant role in the appellant's decision to enter a plea of guilty. Accordingly, the respondent agrees that it is in the interests of justice in the circumstances of this case that the conviction be set aside and a new trial ordered on a charge of manslaughter.

[9] Decision

[31] In our view this is one of those cases, where despite the passage of time since the plea was entered, this court should exercise its power to set aside the guilty plea in the interests of justice. The fresh evidence establishes that absent Dr. Smith's flawed opinion the appellant would not have pleaded guilty to manslaughter.

[32] Accordingly, the fresh evidence is admitted, the appeal is allowed, the guilty plea set aside, the conviction for manslaughter is set aside and a new trial is ordered.

[33] Our thanks to Mr. Lockyer and Mr. Pinnock for their assistance.

Released: February 7, 2018 ("M.L.B.")

"J. MacFarland J.A."

"G. Pardu J.A."

"M.L. Benotto J.A."