Thursday, October 16, 2008


Justice Stephen Goudge's call for a review of shaken-baby deaths in the Ontario - and the Province's quick decision to order one - should send shock waves around the worlds to any jurisdiction where forensic pathologists were infected by this dubious - now discredited suspect - theory.

One of the hallmarks of a civilized state is its willingness to seek out miscarriages of justice - and to act prominently to remedy them - as the United Kingdom has already done with shaken-baby deaths;

The Association In Defence of the Wrongly Convicted rightly points out that it is not enough to probe baby-shaking deaths in Ontario alone - any review should be national. (And other nations should follow suit);

The Asociation's views are conveyed in a Toronto Star story by my Colleague Theresa Boyle, headed, "National probe of child deaths urged" which ran last Friday.

"A review of old shaken-baby deaths should be undertaken nationally, not just in Ontario, because it's likely others across the country have been convicted of injuring or killing children based on faulty science, says a prominent advocate for the wrongly convicted," the story began.

"The whole shaken-baby syndrome has really now been largely discredited. There is good reason to think that there are going to be a number of people who were charged with and found guilty of shaken-baby (deaths) on the basis of a discredited scientific theory," said James Lockyer, a lawyer and founding director of the Association in Defence of the Wrongly Convicted," it continued.

"The Ontario government announced Wednesday it will review about 220 shaken-baby convictions to determine if faulty science contributed to miscarriages of justice.

The announcement came on the heels of the release of the Goudge Commission Report into Pediatric Forensic Pathology, which urged the province to conduct such a probe. Shaken-baby syndrome was under the spotlight at the 18-month-long inquiry, which heard there has been an evolution in the debate about the syndrome over the last two decades and that such deaths might be diagnosed differently today.

There is fierce debate in the medical community about the syndrome. New research shows that some babies once thought to have died from being shaken in fact suffered head injuries from external impacts.

The inquiry probed possible miscarriages of justice resulting from errors that disgraced pathologist Dr. Charles Smith made in 20 child-death investigations, some which involved deaths attributed to the syndrome.

In one case, a Timmins father spent his life savings to mount a successful defence of his 12-year-old daughter who had been charged with manslaughter in the 1988 death of a toddler she had been babysitting.

Smith had determined it was a case of shaken baby, but experts subsequently found the child had died from striking her head in a fall down a flight of stairs.

In another case, a Scarborough father was convicted in 1992 of criminal negligence in causing the death of his 5-week-old son. Smith said the baby died of shaken-baby syndrome, but the pathologist was subsequently found to have erred. Experts have said it's possible the child may have died of natural causes.

Lockyer represented the father at the inquiry and is helping him appeal the conviction.

"I have good reason to think that there are people who are either in (jail) or who have served prison sentences or other forms of sentences for crimes that never happened," Lockyer said.

Pathologists other than Smith worked on many of the cases that will be covered in the provincial review.

The debate has already caused another jurisdiction to review old cases.

In calling for the provincial review, Attorney General Chris Bentley pointed out that a probe into 88 such cases in Britain found three cases where questionable medical evidence may have contributed to a miscarriage of justice.

"Shaken-baby was a worldwide scientific theory which applied in every province in Canada, every country in the world. So there's no reason why B.C. should be any different than Ontario," Lockyer argued in urging other provinces to review old cases."