Part Five:Gaurov's Father: Dinesh Kumar's Affidavit; A Heart-Rending Document; A Message To His Temple;
"GAUROV’S DEATH MADE ME AND MY WIFE VERY SAD. WE WERE COMPLETELY DEVASTATED AND DEJECTED. WE ALWAYS REMEMBER HIM. WE TALK ABOUT HIM. WE HAVE TOLD HIS BROTHER ABOUT HIM NOW THAT HE IS OLD ENOUGH TO UNDERSTAND. I CARRY A PHOTOGRAPH OF HIM EVERYWHERE I GO. WE CRY FOR HIM. I THINK OF HIM EVERY DAY. WE MAKE A DONATION TO THE TEMPLE IN HIS NAME EVERY YEAR. HE WOULD BE 15 NOW, IN GRADE 11, AND A BROTHER TO SAUROB. AFTER WHAT HAPPENED TO ME, VEENA AND I DECIDED WE COULD NOT DARE TO HAVE ANOTHER BABY IN CASE IT WAS TAKEN AWAY FROM US. SO SAUROB IS AN ONLY CHILD."
"MY WIFE AND I WERE FURTHER UPSET BY THE POLICE INVESTIGATION. IT MADE IT HARD TO MOURN GAUROV WHEN THE POLICE SEEMED TO THINK WE MIGHT HAVE BEEN THE CAUSE OF HIS DEATH. I COOPERATED WITH THE POLICE BECAUSE I WANTED ANSWERS TO WHY GAUROV HAD DIED. I COMPLETELY DENIED ANY WRONGDOING AND TOLD THEM EXACTLY WHAT HAPPENED THAT NIGHT. IT WAS A GREAT SHOCK WHEN I WAS ARRESTED ON JUNE 26, 1992. I WAS CONFUSED, FRIGHTENED, HUMILIATED AND ASHAMED BEFORE MY FAMILY AND MY COMMUNITY."
"MY LAWYER POINTED OUT A LOT OF THINGS TO ME. I WAS FACING LIFE IMPRISONMENT ON THE MURDER CHARGE. I WAS FACING MANY YEARS IN PRISON EVEN IF I WAS ONLY CONVICTED OF MANSLAUGHTER. SO THE CROWN’S OFFER WAS, MY LAWYER TOLD ME, AN EXCELLENT OFFER. MR. GORRELL URGED ME TO ACCEPT IT. I COULD NOT ALLOW MY WIFE TO HAVE TO BRING UP SAUROB WITHOUT ME. THEY NEEDED ME AS A FATHER AND AS FINANCIAL SUPPORT. I WAS ALSO TOLD BY CHILDREN’S AID THAT I COULD HAVE SAUROB BACK IF THAT WAS ALL THAT HAPPENED. I COULD NOT CONCEIVE OF LOSING HIM TOO. I WANTED TO GET EVERYTHING OVER WITH. MR. GORRELL TOLD ME THAT HE DID NOT THINK THERE COULD BE ANY DISPUTE THAT GAUROV HAD BEEN SHAKEN TO DEATH. HE TOLD ME THAT DR. SMITH WAS LIKE “A GOD” IN COURT. MR. GORRELL TOLD ME THAT I WOULD BE DEPORTED IF CONVICTED OF MURDER OR MANSLAUGHTER BUT THAT THE POLICE WOULD NOT REPORT MY CASE TO IMMIGRATION IF I ACCEPTED THE PLEA. MY FAMILY, INCLUDING MY WIFE, WANTED ME TO ACCEPT THE CROWN’S OFFER. MY WIFE WAS STILL RECOVERING FROM HER SURGERY AND COULD NOT COPE ALONE WITH ONE INFANT AND NO INCOME. WE ALL WANTED TO PUT MY CHARGE BEHIND US. WE WERE ALL SCARED OF THE MURDER CHARGE. MY LAWYER TOLD ME THAT WE DID NOT HAVE ANY WAY TO CHALLENGE THE TESTIMONY OF DR. SMITH. SO I AGREED, AFTER MUCH DISCUSSION WITH MY FAMILY, TO PLEAD GUILTY AS I DID. IT WAS THE HARDEST DECISION I EVER HAD TO MAKE. I DO NOT WANT MY GUILTY PLEA TO EVER BE INTERPRETED TO MEAN THAT I DID ANYTHING TO HARM GAUROV. I DID NOT. MY WIFE KNOWS THIS TOO."
"MY CONVICTION WAS A MISCARRIAGE OF JUSTICE. I DID NOTHING WRONG TO GAUROV. MY WIFE AND SAUROB KNOW THIS BUT SOME MEMBERS OF MY RELIGIOUS COMMUNITY STILL AVOID ME. I GO TO MY TEMPLE AND AM SOMETIMES MADE TO FEEL ASHAMED BECAUSE PEOPLE POINT AT ME AND TALK ABOUT ME BEHIND MY BACK AS THE PERSON WHO KILLED HIS OWN BABY. I SAY TO MYSELF I DID NOTHING WRONG BUT THIS ONLY HELPS A LITTLE. I WANT MY NAME TO BE CLEARED. IF MY NAME IS CLEARED, I WILL POST AN ANNOUNCEMENT ON THE NOTICE BOARD OF MY TEMPLE.""
DINESH KUMAR; FROM HIS AFFIDAVIT TO THE ONTARIO COURT OF APPEAL; -------------------------------------------------------------------------------
"I, DINESH KUMAR, of the City of Scarborough, in the Province of Ontario, make oath and say as follows," the affidavit begins;
"I am the Applicant herein. I was born on April 17, 1966 in the State of Punjab, in India. My father, now deceased, worked in public transportation. I am now 42 years of age," it continues;
"I graduated from High School in 1984. I then worked as a goldsmith with my brother in the Punjab.
"In 1989, my wife Veena and I became engaged in the Punjab. I was still working as a goldsmith.
My wife came to Canada in early 1989. She was sponsored here by her brother. Months later she returned to India and we married. She came back to Canada and sponsored me to immigrate here in October, 1990. Saurob, our first son, was born two weeks before I came to Canada.
Shortly after my arrival in Canada, in January or February, 1991, I found employment as a general labourer for Sandy Line Sticker Design in Markham. I worked there for four years. It was in this period that Gaurov was born and died.
Gaurov, our second son, was born on February 11, 1992. The evening of the day Gaurov was born, my wife had a seizure in the Centenary Hospital. She was diagnosed with a brain tumour and remained in hospital for one month. They operated and her tumour was removed. It proved to be benign.
In that month, family care was complicated. I had to keep working to keep my job, and I now had two infants to look after. Gaurov spent some of the period in hospital with my wife. My wife’s brother, Yograj Verma, and his wife helped me look after Saurob (and Gaurov). At one point, my wife was allowed to come home for two or three days. Then, on March 3, 1992, my wife was released from hospital. She stayed with her brother and his family for a few days and then came home to me. We were then living at 40 Tuxedo Court, Apartment 1009, in Scarborough.
On Thursday, March 17, 1992, I went to work at Sandy Line. I came home from work in the evening. My wife and our two sons were at home. I fed Gaurov at about 9:00 p.m., burped him and we played. At about 10:00 p.m., I put Gaurov in his crib. We were living in a one bedroom apartment so we all slept in the same room.
At around midnight, Gaurov woke up crying. I fed him milk from a bottle, burped him and placed him back in his crib where he fell asleep. At 12:30 a.m., Gaurov woke up with a scream. I picked him up and realized he was not breathing and was turning blue. I told my wife something was wrong. I took him into the livingroom and gave him first aid, both artificial respiration and mouth to mouth. I had received some training in High School and remembered it. Gaurov was still not breathing. I called Veena’s brother to ask what to do (I did not know the 911 call system). He told me to call 911 which I did. Both I and my wife spoke to the emergency operator. I had now placed Gaurov on the sofa, and Veena and I were trying to tend to him.
Neither Veena nor I spoke English very well in 1992. Our native language is Punjabi. Nevertheless, we managed to explain to the 911 operator that Gaurov was in trouble. I told the operator that Gaurov was
“like dead body, I don’t know what happened to him.” Veena and I were both panicking.
Emergency personnel came and Gaurov was taken to Centenary Hospital. I followed him there. He was then transferred to the Hospital for Sick Children. A day later, we were told that he was on life support and that he would be monitored to see if he had any brain activity. I could not agree to the life support being removed. He was in bed, breathing and alive. For me as his father, I could not believe he was really dead. Veena’s brother was the one who authorized removal of the life support.
Gaurov’s death made me and my wife very sad. We were completely devastated and dejected. We always remember him. We talk about him. We have told his brother about him now that he is old enough to understand. I carry a photograph of him everywhere I go. We cry for him. I think of him every day. We make a donation to the Temple in his name every year. He would be 15 now, in Grade 11, and a brother to Saurob. After what happened to me, Veena and I decided we could not dare to have another baby in case it was taken away from us. So Saurob is an only child.
Saurob had suffered a similar experience to Gaurov, fainting suddenly and turning blue when he was an infant. I revived him through mouth to mouth resuscitation. I told the authorities about this while Gaurov was on life support. On March 20, 1992, as Gaurov’s life support was removed, Saurob, who was at the hospital, was taken away by Children’s Aid. Almost three weeks later, he was allowed into the care of Veena’s brother. At first, neither Veena nor I could be alone with him. We had now lost both our boys.
My wife and I were further upset by the police investigation. It made it hard to mourn Gaurov when the police seemed to think we might have been the cause of his death. I cooperated with the police because I wanted answers to why Gaurov had died. I completely denied any wrongdoing and told them exactly what happened that night. It was a great shock when I was arrested on June 26, 1992. I was confused, frightened, humiliated and ashamed before my family and my community.
I spent two weeks in prison. I was then released on bail. One of my bail conditions was: ..not to have contact with his son born on October 9, 1990 except in the presence of a supervisor of the Children’s Aid Society.
I was in a new country with its own culture, and did not speak English very well. I was represented by David Gorrell and Dharman Kissoon. They presented me with the Crown’s position on my case; I was told the Crown’s final position was that if I pleaded guilty to Criminal Negligence Causing Death I would be sentenced to 90 days to be served on weekends, and a term of probation. I thought very hard about whether I should plead guilty. First, I knew that I had done nothing to cause Gaurov’s death. I loved him, cared for him and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception.
My lawyer pointed out a lot of things to me. I was facing life imprisonment on the murder charge. I was facing many years in prison even if I was only convicted of manslaughter. So the Crown’s offer was, my lawyer told me, an excellent offer. Mr. Gorrell urged me to accept it. I could not allow my wife to have to bring up Saurob without me. They needed me as a father and as financial support. I was also told by Children’s Aid that I could have Saurob back if that was all that happened. I could not conceive of losing him too. I wanted to get everything over with. Mr. Gorrell told me that he did not think there could be any dispute that Gaurov had been shaken to death. He told me that Dr. Smith was like “a God” in Court. Mr. Gorrell told me that I would be deported if convicted of murder or manslaughter but that the police would not report my case to immigration if I accepted the plea.
My family, including my wife, wanted me to accept the Crown’s offer. My wife was still recovering from her surgery and could not cope alone with one infant and no income. We all wanted to put my charge behind us. We were all scared of the murder charge. My lawyer told me that we did not have any way to challenge the testimony of Dr. Smith. So I agreed, after much discussion with my family, to plead guilty as I did. It was the hardest decision I ever had to make. I do not want my guilty plea to ever be interpreted to mean that I did anything to harm Gaurov. I did not. My wife knows this too.
My plea succeeded in one very important way. There was no condition in my probation order preventing me from being with Saurob. I was simply required to
“- take such counselling that are (sic) made available to you by either the Children’s Aid Society or some community organization,
- follow up on any plan relating to parenting skills and attend to such plan as recommended by your probation officer.”
As a way to relieve some of the pressure, my wife took Saurob to India for an extended stay. I visited them there for a month in April, 1993, and we all returned to Canada in May, 1993, where we lived together again as a family and have ever since.
Life returned to normal but I never lost my sense of shame that I had had to admit to causing Gaurov’s death. For 13 years I assumed it was over. My wife and Saurob became Canadian citizens. I never applied for citizenship for fear that my conviction would come up and cause an immigration investigation of me.
Then, in 2005 or 2006, I received a telephone call from the Chief Coroner’s Office telling me that Gaurov’s case might be re-examined. The man told me that there might be something about it in the newspapers. I did not know what to think of this. My wife and I were scared that they might be thinking of charging me again. I went to see my family doctor who then explained that they were looking at all of Dr. Smith’s cases in case he had got things wrong. I was very relieved. I heard nothing more until 2007.
On the evening of May 28, 2007, Mr. Lockyer came to my home in Scarborough. Only Saurob was at home. I was at work. Saurob gave Mr. Lockyer my telephone number and he called me. He told me that he was calling for an organization which I now know to be AIDWYC. He explained that there was new information about how and why Gaurov had died. He asked me if, after so many years, I wanted to reopen my case. I responded by simply telling him that I thought of Gaurov every single day. 23. I met Mr. Lockyer on May 31, 2007. Since then I have come to understand that medical science now has natural cause explanations for Gaurov’s death. I followed the proceedings at the Goudge Inquiry. I met Mr. Justice Goudge for an hour on June 20, 2007. I went to watch the Inquiry proceedings on several days and watched Dr. Charles Smith’s testimony for all five days that he gave evidence. I feel that my life will be starting all over again if I can re-open my case and be found innocent of killing my son.
My conviction was a miscarriage of justice. I did nothing wrong to Gaurov. My wife and Saurob know this but some members of my religious community still avoid me. I go to my Temple and am sometimes made to feel ashamed because people point at me and talk about me behind my back as the person who killed his own baby. I say to myself I did nothing wrong but this only helps a little. I want my name to be cleared. If my name is cleared, I will post an announcement on the notice board of my Temple."
My interest in forensic pathology began with my Toronto Star investigative reporting into once famed since disgraced former doctor Charles Smith. I began this Blog after retiring from the Star in 2006 in order to follow the aftermath into the independent Goudge inquiry into many of Smith's cases. I have now begun to focus on cases involving flawed forensic science no matter where they occur (the recent Amanda Knox prosecution in Italy, for example) and am fascinated by the interest in the Blog from people in countries throughout the world. In another development, my interest in "junk science" "pseudo-experts" and the miscarriages of justice they all too often cause has drawn me deeply into the on-going U.S. death penalty debate where so many troubling cases involve issues relating to DNA and other developments in the world of forensic science. For all of this I rely on my experience as a reporter at the Toronto Star, my work as a lawyer in Ontario's criminal courts, and my abhorrence of injustice. Please send cases and developments which may be of interest to this Blog to email@example.com. Read on! Harold Levy.