Goudge Inquiry: Joshua's Case: Part Three; Aftermath Of A Flawed Opinion;

"SOME CASES COME BACK TO HAUNT YOU AND THIS IS ONE OF THEM;"

LAWYER BRUCE HILLIER;

On January 4, 1999, something happened that should never happen in Canada's criminal justice system.

Sherry Sherret not guilty to infanticide but was found guilty based on the evidence from Dr Charles Smith.

Dr. Smith's opinion was at the heart of the Agreed Statement of Facts read into the court record;

The Agreed Statement reads:

"Dr. Charles Smith performed an autopsy on the baby at the Toronto Hospital for Sick Children.

He determined the cause of death to be asphyxia.

He ruled out mould or disease as a cause of death.

Pinpoint hemorrhages in the tissue of the eyelids, sometimes present in non-accidental asphyxia were not found in the case.

Dr. Smith was highly suspicion that the death as non-accidental, but there were no overt signs of violence upon which to make a conclusive finding."

"A microscopic skull fracture was discovered months after the original post mortem," the Agreed Statement of Facts continued.

"It was not initially visible to the pathologist."

Dr. Smith testified at the preliminary hearing that this skull fracture could have been caused on either an accidental or non-accidental basis and was not the cause of death.'

One can only imagine what Sherret felt when she heard Justice Byers utter the fallowing words before sentencing her to one year in jail followed by two years probation.

"To this day, I do not understand why she did it," he began.

"There is no doubt that looking after Joshua was very stressful for her; and it would seem that there were warning signs that were there to be seen

But at the end of the day only she knows what she did, and shy she did it.

And she is not telling." denies her guilt and shows no remorse," Byers continued.

"Her support system in the community - her family, her friends - reinforce that position.

Joshua did not die because his mother was suffering from some sort of post-partem depression.

His death, perhaps, is connected the fact that Sherry suffers from what the doctors have called a mixed personality disorder.

Or perhaps not.

No doubt, though, her attitude towards this tragedy is connected to that diagnosis."

We are now aware that Dr. Smith's opinion was terribly flawed.

There was no ashphyxia.

There was no skull fracture.

There was just an innocent grieving mother who had lost her son due to a natural but unexplained death; (One possibility is that Joshua accidentally suffocated during his sleep.)

I sometimes wonder how judges feel on learning that they have passed sentence on an innocent person - and the words they have said on passing sentence are seen in a different light.

In fairness, the judge usually has no information on the case except that which is provided by the parties at the particular time.

The one year prison term -sentencing was left in the hands of the judge - was not the only punishment meted on Ms. Sherret in the aftermath of Dr. Charles Randal Smith's flawed opinion.

Byers also placed her on probation for two years, saying:

"You are not to be in a parental position towards infant children; and,

"If you get pregnant, you must immediately report that to a probation officer."

We learn from an Overview Report on the case prepared by Commission staff that Sherret had a third child in September, 2005 - and that on the basis of her conviction for infanticide the local Children's Aid Society applied for an order removing her from the family home in order to prevent her from living with her new child.

The Report includes a letter "To whom it may concern" drafted by Bruce Hillier, Sherret's lawyer, to assist her with the family court proceedings;

"Faced with the prospect of a conviction and all that flows from that, I vigorously represented Ms. Sherret and at the 11th hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide, the basis at the time, Sherry was suffering from post-partem depression," Hillier wrote;

"The compromise between the Crown and the defence was seen as a way out for both sides - the Crown fearing they couldn't get a conviction of any kind and the defence fearing that a conviction for murder, while not justified, would result in a lengthy period of incarceration."

Sherret then turned to the Association In Defence of the Wrongly Accused for assistance.

Lawyer James Lockyer wrote former Chief Coroner Dr. Barry McLellan, that a review by his office of Joshua's death "acquires huge importance" because Sherret, having lost one child to adoption, now faced loss of her daughter.

"Ms. Sherret has two other children," Lockyer wrote.

"Her first born...was taken away from her at the age of eighteen months after her arrest in March 196 for Josh's murder.


(He) was subsequently put up for adoption, and now lives with his adoptive parents in Cobourg;

Ms. Sherret has written contact with him every year at Christmas and his birthday,

(He) is now 12 years old.

Her third born...is now five-months old.

Ms. Sherret, (the child's father and (the child) herself live together at their home in Belleville.

By Court order, Ms. Sherret has not been allowed to be alone at any time with her daughter since her birth;"

Lockyer stressed that a review was imperative because, "if Joshua died of natural causes, as AIDWYC believes he likely did, (and the Chief Coroner's review confirmed: HL) Ms. Sherret may be about to become the victim of a third miscarriage of justice."

"(Her daughter) will become one too."

Finally, on April 5, 2007, the Children's Aid Society applied in Court for an order terminating the existing supervision order.

A child protection worked candidly noted in an affidavit filed with the Court that, "Following the completion of the parenting Capacity Assessment, it was noted that (Sherry's) denial of any wrongdoing was concerning and further, made it impossible to treat her."

(See previous posting: Mullins-Johnson: Dilemma of the innocent;)

"However, it is now believed that (Sherry) may not have done anything wrong.

AIDWYC is now pursuing quashing of the infanticide conviction and an acquittal for Ms. Sherret in the Ontario Court of Appeal;

Lawyer Hillier cogently summed up this case in his letter "to whom it may concern" referred to above.

"Some cases come back to haunt you and this is one of them," he said.

(See previous postings:
The Joshua case: Part One: How Smith caused havoc by failing to deliver a crucial forensic report;
The Joshua case: Part Two: Yet another disturbing tale of important forensic evidence lost by Dr. Charles Randal Smith;)

Harold Levy;