SMITH CASE INVOLVING GUILTY PLEA TO ASSAULT IN FEAR OF MANSLAUGHTER CONVICTION BEFORE ONTARIO COURT OF APPEAL TODAY: GLOBE AND MAIL REPORT;

"Among the many child autopsies that Charles Smith is alleged to have botched during his scandal-ridden reign as Ontario's top pathologist, a case that is scheduled to reach the Ontario Court of Appeal today stands out for a particularly jarring reason," the Globe and Mail story by reporter Kirk Makin begins, under the heading, "Father trying to clear name in son's death."

"In spite of the fact that the brain of the dead child - Dustin Brant - had rotted away after morgue staff mistakenly left it in a container of water, Dr. Smith nonetheless went ahead and concluded that the child was shaken to death," the story continues;

"His conclusion caused Richard Brant, the child's father, to be convicted of aggravated assault in Dustin's death - a 1995 conviction that Mr. Brant intends to challenge should the Court of Appeal agree to reopen his case.

"Dr. Smith provided his opinion under significant shortcomings," says an affidavit filed by lawyers James Lockyer and Alison Craig of the Association in Defence of the Wrongly Convicted. "There were no brain sections, slides or blocks to examine. The number of photographs taken were few."

Dr. Smith went so far as to contradict a neuropathologist who conducted the original autopsy - Sukrita Nag - and who concluded after examining the child's brain that he had likely died of pneumonia.

Mr. Brant recalled in his affidavit that he felt compelled to plead guilty to avoid a possible conviction for manslaughter.

"I did nothing to cause Dustin's death and I still grieve for him," said Mr. Brant, a 36-year-old resident of Moncton. "My decision to plead guilty was the hardest decision of my life.

"I did not cause Dustin's death or assault him in any way, and pled guilty because I felt I had no other realistic option. ... I now know that I entered my plea based on flawed pathology."

The night before Dustin died, his father and mother had a fight that included a small physical altercation. The next morning, Mr. Brant took Dustin for a walk and ran into a friend who wanted to see his baby. When Mr. Brant lifted a rain guard, he discovered red foam around Dustin's nose.

Witnesses later said that Mr. Brant became visibly shocked and distressed. The child was rushed to hospital, but died less than two days later - on Nov. 18, 1992.

A radiologist, and regional coroner Benoit Bechard were skeptical after Dr. Nag pointed to pneumonia as the probable cause of death. They recommended that Dr. Smith conduct a second autopsy.

On April 15, 1993, Dr. Smith reported: "The autopsy findings of this boy indicate that death resulted from blunt trauma. In the absence of a credible explanation, this injury must be regarded as non-accidental in nature."

Experts who testified at an inquiry into Dr. Smith's botched cases last year stated that Dr. Smith went too far and based some on his conclusions on questionable evidence of foul play.

In his affidavit, Mr. Brant said that his trial lawyer, Robert Graydon, who is now a judge with the Ontario Court of Justice, warned him that Dr. Smith was "the king of his field, and challenging his conclusions would be next to impossible.

"For many months, Mr. Graydon told me it was in my best interests to plead guilty," Mr. Brant stated. "He said he would tell the court that Dustin's injuries had been caused during a struggle with Mary on the Friday evening. He urged me to accept the offer."

Instead of getting a sentence that would likely have been six to eight years for manslaughter, Mr. Brant received six months in prison."

Harold Levy...hlevy15@gmail.com;