Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2023-06-13 Docket: C58277

Judges: Lauwers, Pardu and Benotto JJ.A.

BETWEEN:

His Majesty the King Respondent

and

Bernard John Doyle Appellant

Counsel: James Lockyer, Jack Gemmell and Jerome Kennedy, K.C., for the appellant Michael Bernstein, for the respondent

Heard: June 12, 2023

On appeal from the conviction entered on December 18, 1997, by Justice C. Stephen Glithero of the Ontario Court (General Division), sitting with a jury.

Reasons for Decision

[1] This is another in the long list of wrongful convictions brought about in part by the unreliable expert evidence of disgraced pathologist Dr. Charles Smith. [1] Cases in this court setting aside such convictions include R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425; R. v. Sherrett-Robinson, 2009 ONCA 886; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369; R. v. Brant, 2011 ONCA 362; R. v. Shepherd, 2016 ONCA 188; and R. v. Blackett, 2018 ONCA 119.

[2] The appellant asks that an acquittal be entered on appeal. However, unlike the Crown’s concession that an acquittal was appropriate in Mullins-Johnson, Sherrett-Robinson, Kumar, Brant, and Shepherd, the respondent initially took the position that, while the conviction should be set aside in this case, Mr. Doyle should not be acquitted but should be given a new trial. In a last-minute change of position, the respondent now says this court should order a new trial and then enter a judicial stay.

[3] The appellant was convicted in 1997 of manslaughter in the death of his then-girlfriend’s son, 17-month-old Tyler Cunningham. He was sentenced to three years imprisonment in addition to six months pre-trial custody. The appellant did not appeal his conviction and has served his sentence. After the Goudge Report, the appellant applied for and was granted an extension of time within which to appeal his conviction.

[4] We accept as accurate the recitation of relevant evidence in the appellant’s factum, which we paraphrase. The appellant related that while dancing vigorously to music with Tyler in his arms, face to face, he accidentally tripped. He and Tyler fell, with the appellant on top of Tyler, and the back of Tyler’s head might have landed on the appellant’s tools on the floor. The cement floor was covered by industrial carpet and underlay. It was “a good solid-type floor”. Everything happened in a split second.

[5] At trial, Dr. Smith and Dr. Chitra Rao rejected this account as able to explain Tyler’s injuries. They considered that a combination of blunt force trauma and “shaken baby syndrome” – Dr. Smith’s now discredited theory – accounted for Tyler’s injuries.

[6] The appellant proffers fresh evidence, consisting of four new expert opinions reviewing the reports of the two pathologists and two hospital doctors called at trial, the documents which set out how the appellant’s case came to be reviewed after the Goudge Report was issued, a transcript of the 911 call made after Tyler’s collapse, the appellant’s affidavit sworn in 2022, and his cross-examination on the affidavit. The opinions of the new experts are that, in light of more modern forensic science, the Crown’s trial experts were wrong. The appellant’s account then and today is consistent with all the injuries Tyler suffered.

[7] The preferred explanation is that Tyler suffered his injuries in a “complex fall”, which could be the fall described by the appellant in the 911 call. The Crown objects to admission of certain of the fresh evidence including the transcript of the 911 call. We agree with Mr. Lockyer that the forensic fresh evidence throws into doubt defence counsel’s trial strategy in not seeking to rely on the 911 call transcript. It casts additional light and must be admitted in the interests of justice. The Crown also objects to the evidence of Dr. Chris Van Ee, a bio-mechanical engineer. Both the 911 transcript and Dr. Van Ee’s report are reliable evidence. Given the injustice of the conviction based on discredited expert evidence, in our view it is appropriate to admit the fresh evidence on appeal.

[8] Dr. Michael Shkrum wrote in his report:

A complex fall can occur in many different ways and involve multiple impacts in contrast to a simple fall resulting in a single impact onto a flat surface. Because complex falls are so varied, there is no usual pattern of head and other body injuries that they can cause.

If Mr. Doyle’s account was accurate, then he described a complex fall. It is complex for two reasons:

1. The fall occurred in an area where the floor surface was not flat. The scene photographs show a number of tools and other items lying on the floor which Tyler’s head and body could have struck at multiple sites and different angles.
2. Since Mr. Doyle fell on top of Tyler when he hit the floor, the force of his weight and size would have had its own impact on Tyler and his fall.

These two factors mean, as in other complex falls, that there were numerous variables as to where and, with what force, areas of Tyler's body were impacted.

[9] Dr. David Ramsay, a neuropathologist, reported that the appellant’s description of the events “is indicative of a complex fall”, and that the “neuropathological findings are consistent with such a fall.” Dr. Van Ee, and Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, agreed. In his report for the respondent, Dr. Pollanen stated:

I agree a complex fall could cause multiple injuries due to multiple points of contact with the surrounding environment, without the need to posit more than one episode of trauma. It is also true that multiple injuries can be caused by multiple non-fall related impacts.

[10] Dr. Shkrum gave the opinion that Tyler “died as a result of a fall in his home.” Dr. Ramsay agreed but noted that he “cannot completely exclude the possibility of non-accidental injury”. Dr. Van Ee stated that “Tyler’s injuries are accounted for by the history provided by Mr. Doyle.” This evidence is well within Dr. Van Ee’s expert remit.

[11] Dr. Pollanen provided his overall assessment of the case:

This case would now be viewed differently by many experts based on knowledge that has accumulated between the autopsy in 1996 and now, 24 years later. Indeed, from my perspective, there are some additional specific points to be highlighted about this case:

1. The trial testimony was dominated by direct and cross examinations relating to shaking injury. In 2020, it is highly unlikely that shaking would be seriously discussed as a potential mechanism of injury in this case, certainly among qualified and experienced forensic pathologists. Shaking would probably only be mentioned in passing, largely to caution against placing too much medical weight on the issue. As a forensic pathologist reading the transcripts in retrospect, the testimony appears to be overly skewed to inflicted injury based on the emphasis on shaking.
2. However, to be fair, the testimony of Drs. Smith and Rao was almost entirely aligned with the mainstream views in the medical literature at the time of the trial. Therefore, although by today’s standard the testimony would be non-representative of commonly held views, it was largely ‘correct’ for the time. Despite this, there was at least one aspect of Dr. Smith’s testimony that was not accurate (e.g., ‘occipital injury’ and shaking).
3. In the intervening years since the trial, it has become increasingly recognized that complex accidental falls are a reasonable, although rare, explanation for fatal head injuries in infants and children. … In this case, when viewed in totality in 2020, the original account of the complex fall and the sequence of events that occurred afterward (as provided in the emergency medical records) are a reasonable explanation for the fatal head injury.

[12] Given the diversity of views among the experts, we see no prospect that Mr. Doyle could be convicted again. As this court noted in Shepherd, at para. 21, in similar circumstances, “[t]his uncertainty amongst the experts means that responsibility for that death cannot be brought home” to the appellant. The weight of the evidence plainly undermines the trial evidence supporting the appellant’s conviction and supports his innocent explanation for Tyler’s death.

[13] We see no merit in the respondent’s argument that differences in the appellant’s explanation of the events leading to Tyler’s death themselves warrant a new trial. The police interview in this case was a gruelling interrogation and reflected several of the abusive techniques referred to by Iacobucci J. in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. No weight can be put on the interview. The appellant thoroughly explained its effect on him in his affidavit, on which he was not shaken in cross-examination. In his affidavit, the appellant said:

I found the interview so traumatic that I almost began to believe what they were telling me, but it was not true. I did not shake Tyler, nor was I rough with him. I was handling him as an infant should be handled, gently and with love, and I tried to protect him when we fell. I just did not see my tools on the floor.

[14] In his cross-examination, the appellant said, “I was bullied into … saying something that I didn’t do”, and “they were drilling me for hours, and bullied me, and made me say what they wanted to hear”. When it was put to him that at the end of his interrogation, he did not tell the officers that he landed on Tyler, he responded:

Yes, sir, I -- I -- I said yes, sir, because after all the hours that the men were badgering me, like, telling me I was lying and saying I was -- they wouldn’t -- they didn’t believe me, they weren’t going to take that, sir, I had fallen and broke and caved, and I’m -- I said something that wasn’t true.

[15] The forensic fresh evidence is consistent with the appellant’s version of events. There is simply no reasonable prospect of a conviction. Mr. Doyle is entitled to an acquittal under the test formulated by this court in Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 247.

[16] For these reasons, the appeal is allowed. The conviction is set aside, and an acquittal is entered. The publication ban on the fresh evidence is lifted.

“P. Lauwers J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”

Footnote:

[1] Dr. Smith’s history is set out in the report of the Honourable Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008).