On Monday William Mullins-Johnson will seek an acquittal and exoneration from Ontario's highest court on a Reference from federal justice minister Rob Nicholson.
The Reference will be heard by Justices Dennis O'Connor, Marc Rosenberg and Robert Sharpe.
It has been almost eleven years since December 19, 1996, when the Ontario Court of Appeal dismissed Mullins-Johnson's appeal of his first-degree murder conviction in the killing of his 4-year-old niece Valin Johnson- who we now know likely died after choking on her vomit.
Although the Court did not have the benefit of subsequent testing of autopsy exhibits which showed that Dr. Charles Smith's opinion was terribly wrong, Justice Stephen Borins ruled that Mullins-Johnson should have a new trial.
Borins found that there was no evidence that Mullins-Johnson had ever abused Valin, sexually or otherwise, there was no motive proven, and the scientific evidence of a recent sexual assault adduced by Smith was flawed.
In recent years. the Court of Appeal has become well exposed to the allegations that have been brought against Smith since it dismissed Mullins-Johnson's appeal.
On January 9, 2004, for example, Justices David Doherty, Robert Sharpe and Janet Simmons, issued a ruling relating to the Marco Trotta case.
The Court rejected Trotta's submission that he was entitled to disclosure of materials relating to Smith's work in other criminal cases - but became aware of the magnitude of the allegations being brought against Smith in numerous criminal cases.
Then, on April 18, 2005, the Court of Appeal upheld the decision of a Superior Court Justice to stay first degree murder charges against Anthony Kporwodu and Angela Veno on the basis of unreasonable delay which had been attributed to Smith.
Justices Michael Moldaver, Eileen Gillese, and Russell Juriansz stated in their unanimous decision that, "It is inescapable that the trial of this matter was delayed for the better part of two years because of the failings of the key crown witness, Dr. Charles Smith, the pathologist who performed the autopsy on Athena,”
The Court also noted that the couple’s son, Julius, had been seized by the Children’s Aid Society and was not likely to be returned unless they were cleared in Athena’s death. Fearing the same would happen again because of the intolerable delay, Veno decided to have an abortion after accidentally becoming pregnant while awaiting trial.
Superior Court Justice Brian Trafford, the trial judge, had faulted Smith in a decision released on June 23, 2003, for delay in preparation of the post-mortem report, delay in preparing a written supplement to the post-mortem report which significantly delayed completion of the police investigation, and delay in submitting items from Athena’s body to the Centre for Forensic Sciences;
Trafford found the delay by Smith to be "shocking” - “not only in its departure from the standards expected of him and the office of the Chief Coroner of Ontario in the circumstances of the case, but because of his knowledge of the importance of his work to the case.”
Trafford also noted that Smith was a witness “of critical importance to the prosecution.”
The Court of Appeal most recently dealt with Smith on Thursday, May 17, 2007, when, on Louise Reynold's appeal, he rejected the pathologists argument, upheld by two lower courts that he could not be sued because of a doctrine of witness immunity.
The appeal court's decision gave the green light to Reynolds and others who efforts to launch negligence law suits against Smith had been tied up for years while the issue of common law immunity was percolating slowly through the courts.
Justices Stephen Borins, James MacPherson and Russell Juriansz, ruled in their unanimous decision allowing people like Reynolds to recoup their legal costs part-way through "protracted litigation" is important because it improves access to justice.
"Ms. Reyolds has struggled for five years to win the right to proceed to trial. Dr. Smith has vigorously opposed her right to trial at every step of the way," the court said. "She was forced to come to this court simply to have her right to trial confirmed."
Looking ahead, there are signs that the Ontario Court of Appeal could be dealing with cases involving Dr. Smith for years to come.
Next on the horizon is the appeal of her conviction of infanticide launched by Sherry Sherritt.
Sherritt pleaded guilty to infanticide in the 1996 death of her 4-month old son Joshua, after Smith concluded there were signs consistent with homicide on Joshua's body such as a skull fracture and neck hemorrhages.
A second autopsy conducted in 2006 after Joshua's body was exhumed found no evidence of homicide.
The independent experts asked by Ontario Chief Coroner Barry McLellan to examine the case - along with 44 other suspicious death cases in which Smith had been involved -took issue with Smith's opinion.
Sherritt had served eight months of her one year sentence and went through the horror of having another son, now twelve, taken away from her when she was charged.
Over the past two decades other appeals involving Dr. Charles Smith have been brought to the Ontario Court of Appeal by both accused people and prosecutors.
This posting will be regularly updated as information on them is obtained.
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