"I reject the submission that Dr. Smith did not intentionally mislead the Court. The medical evidence provided to the Jury by Dr. Smith was deliberately calculated and directed to secure convictions. That medical evidence was inconsistent with his initial autopsy findings that the cause of death of Paolo Trotta could not be determined. That conclusion veered 180 degrees when Dr. Smith opined in carefully chosen and subsequently proven to be medically-flawed diagnosis, that Paolo Trotta died as a result of a skull fracture and/or was asphyxiated. This diagnosis was misleading, it had no forensic or medical merit, and as Dr. Avis concluded, that diagnosis was not accidental."
Justice A. Sosna; Motion for stay; Regina V. Marco and Anisa Trotta;
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PUBLISHER'S NOTE: In the following decision, Superior Court Justice Alexander Sosna becomes the first judge to rule that now disgraced pathologist Dr. Charles Smith - who may be responsible for more miscarriages of justice than any other individual in Canadian history - "intentionally mislead" courts in a manner that was "deliberately calculated and directed to secure convictions." The existence of a supposedly neutral Crown expert witness - falsely purporting to be a forensic pathologist - who was committed to obtaining convictions for the state, has to be every civilized criminal justice system's worse nightmare. This Blog is pleased to provide its readers with the entire judgment which was released - subject to a publication ban - on July 2, 2009. The ban is no longer in effect.
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"This is the ruling on the stay application for abuse of process. The Applicant, Marco Trotta, seeks a stay of proceedings at his retrial on charges of second degree murder, aggravated assault and assault bodily harm.
The Applicant, Anisa Trotta, brings the same application at her retrial on charges of criminal negligence causing death and failure to provide the necessities of life.
The convictions against both Applicants in 1998 involved the death of their child, Paolo Trotta. Paolo Trotta was eight months old when he died in 1995.
Marco Trotta was sentenced to life imprisonment with no parole for 15 years on a conviction for second degree murder and concurrent jail sentences on convictions for aggravated assault and assault bodily harm. Prior to his release on bail, pending retrial, he had spent nine years in custody.
Anisa Trotta was sentenced to five years in custody and had served her entire sentence prior to bail release pending retrial.
Both parties appealed their convictions to the Ontario Court of Appeal and their appeals were dismissed in 2004.
In 2007, the Supreme Court of Canada ordered a new trial based on fresh medical evidence, which successfully impugned the medical evidence given by Dr. Charles Smith and the evidence of Dr. David Chan, both of whom testified on behalf of the Crown. Both testified as to the medical causation leading to the death of the young child.
Approximately one year after the Supreme Court of Canada ordered a new trial, the Province of Ontario, by order-in-council, established the Goudge Inquiry. Its mandate was to review the systemic problems in the practice and oversight of pediatric forensic pathology in the Province of Ontario and to make recommendations in order to restore public confidence. The catalyst for that inquiry was Dr. Charles Smith.
It was determined by the Goudge Commission that Dr. Charles Smith in a number of trials, had testified and had reached “factual conclusions that were not reasonably supported by the materials available”.
One of those cases included the prosecution of Marco and Anisa Trotta.
Both Applicants submit that given the evidence of Dr. Charles Smith in the Trotta case, and his subsequent history of failures in evidence that he provided in other prosecutions, in light of the failure of other state actors, namely, the Office of the Attorney General, the Coroner’s Office and the College of Physicians and Surgeons, all of whom are associated with the Province of Ontario, it would be an abuse of process to proceed with a new trial as ordered by the Supreme Court of Canada.
Specifically, both parties submit that a retrial amounts to an unfair and oppressive treatment of them and disentitles the Crown to continue the prosecution.
Anisa Trotta also submits that given the dated history of this prosecution, she is unable to make full answer in defence to the charges she is facing. She submits that her present memory has become frail regarding the events alleged.
In the alternative, Marco Trotta submits that if the charges are not stayed, that the Court exercise its discretion to reduce the charge from one of second degree murder to one of manslaughter since the medical evidence the Crown intends to lead at the retrial cannot establish the medical cause of death of Paolo Trotta.
Both Applicants further submit that if the charges are not stayed, that the Court prohibit the Crown from introducing the evidence of Dr. David Chan as the Supreme Court of Canada has found his evidence at the first trial to be unreliable.
Lastly, Anisa Trotta submits that if the stay is not granted, the Crown application to read into evidence the testimony of Dr. Edward Glazier, not be permitted.
Legal Tests to be Applied
The Supreme Court of Canada in R. v. Ryan has set out the test to be met in an abuse of process application seeking a stay of proceedings. Only in the clearest of cases will a stay of proceedings be granted if the following criteria are met:
1) The prejudice caused by the abuse will not be manifested or perpetuated through the trial proceedings or by its outcome. In this context, a small residual category of abusive action exists which may not affect trial fairness, but would still undermine the fundamental justice of the system. In this limited residual category, a stay of proceedings is only appropriate when the abuse is likely to continue or to be carried forward. Only in exceptional cases will past conduct be so egregious that proceeding with a new trial would be offensive.
2) No other remedy is reasonably capable of removing that prejudice.
3) When the Court is uncertain whether the ground submitted are sufficient to warrant a stay, a third criteria is considered. The interest that would be served by granting a stay of proceedings are to be balanced against the interest that society has in having a final decision on the merits.
A stay of proceedings is a prospective rather than a retroactive remedy.
In this application, counsel agree that the onus lies on the Applicants, on the balance of probabilities, for the Court to order a stay.
The Applicants’ Submission
Both Applicants submit that Dr. Charles Smith and Dr. David Chan, in 1998, provided false and misleading evidence as to the medical cause of death of Paolo Trotta. This evidence was pivotal in the Jury finding both Applicants guilty. At the time of providing his evidence, Dr. Chan was considered to be a leader, if not the foremost expert in investigations of suspicious child deaths.
Over the years, after the Trotta trial, Dr. Smith’s reputation began to erode and was publicly questioned due to flawed medical advice and evidence he provided in a number of subsequent pediatric death investigations and full prosecutions. Even though public concerns began to grow over Dr. Smith’s competence, he continued to testify before the courts on behalf of the Attorney General in pediatric death cases, and continued to receive the unflinching support of his superiors at the Office of the Chief Coroner. Criticism of Dr. Smith escalated. In 2008, the Province of Ontario established the Goudge Inquiry to review systemic problems in pediatric forensic pathology in Ontario. Dr. Smith was the catalyst for this inquiry.
The Applicants submit that from the date of convictions in 1998 to 2007, when the Supreme Court of Canada ordered a new trial, the Office of the Attorney General obstructed efforts to have Dr. Smith’s findings reviewed. As a result, the Applicants remained in custody until granted bail by the Supreme Court when a new trial was ordered.
The Applicants submit that given this history, the discredited medical evidence provided at trial assumes greater and more significant prejudice, not only to the Applicants, but to the entire administration of justice. On this basis, the Applicants submit that the Court exercise its discretion in favour of a stay of proceedings.
Testimony of Dr. Smith at the Trotta Trial
Prior to trial, Dr. Smith provided a report concluding that the cause of death of Paolo Trotta could not be determined. At trial, he abandoned this disgnosis and opined that after exhumation of the body, he observed a skull fracture, which was missed by Dr. Chan in the original autopsy. This skull fracture took on significant importance in Dr. Smith’s evidence. He testified that the skull fracture occurred within ten minutes and at a maximum of two days prior to Paolo’s death. He then linked observations of forehead bruising to evidence of a swollen brain within the skull, the weight of the brain being 30 to 37 percent above normal. Dr. Smith testified that these three factors were consistent with evidence of an impact to the head of the child, culminating in the skull fracture. He then provided the Jury with two opinions as to the cause of death. He stated that the child possibly died of a head injury, which was presumably non-accidental. Secondly, he opined that the child died of an asphyxial event. The asphyxia could have been caused by the head injury, or as a result of neck compression or smothering of the child.
He outlined to the Jury the means by which an infant could die by asphyxia. This included manual strangulation, or placing a film or dry cleaning bag over the face of the child, smothering the child with a pillow, rolling the child on his face while in bed, or pinching the nose and mouth to stop the flow of oxygen. There was no physical and forensic evidence to support these theories.
The Crown embraced the evidence of Dr. Smith as to his diagnosis, with reference both as to the cause of death, and the means by which death occurred. The Crown urged the Jury to accept this medical evidence. The Jury accepted this argument and convicted Marco Trotta of second degree murder, assault bodily harm and aggravated assault. Anisa Trotta was convicted of criminal negligence and failing to provide the necessities of life to their child, Paolo Trotta.
On October 13, 2005, at the request of the Coroner’s Office, Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, prepared a report on Paolo Trotta’s death. By that date, significant press and public concerns had grown as to questionable medical evidence that Dr. Smith had provided in other prosecutions of child pediatric deaths.
In his report, Dr. Pollanen rejected the finding that the skull fracture observed after Paolo Trotta’s body was exumed was recent. Dr. Pollanen found this diagnosis to be erroneous and flawed. The skull fracture was not recent but well healed. Contrary to Dr. Smith’s findings, this skull fracture had not occurred with ten minutes or to at a maximum within two days of death.
At the request of the Applicants, a second opinion was provided by Dr. Simon Avis, the Chief Medical Examiner for the Province of Newfoundland and Labrador. Dr. Avis also concluded that the skull fracture found by Dr. Smith was not recent, but “a remote fracture showing unquestionable evidence of healing”. Dismmissing the significance of this fracture, as found by Dr. Smith, Dr. Avis stated, “To examine Paolo Trotta’s skull to see the fracture and to opine that the fracture is from ten minutes to utmost two days old, simply boggles my mind. I am at a loss why an acute fracture was even a consideration in determining the cause of death in this case.”
Both Dr.’s Pollanen and Avis dismissed Dr. Smith’s findings that Paolo Trotta died because of a head injury or asphyxiation. Dr. Avis found Smith’s diagnosis of manual strangulation to be irresponsible. He opined that evidence of petechial hemorrhages in the thymus and lungs of the infant were not consistent with manual strangulation as found by Dr. Smith. Dr. Avis concluded, “There is no evidence in fact – he can’t have said it accidentally.”
Dr. Pollanen not only rejected Smith’s diagnosis as to the cause of death, he also was highly critical of Dr. Smith’s florid and graphic language in describing to the Jury how a child could be asphyxiated. He viewed this evidence to be inappropriate and pejorative, particularly in the use of the term “coup de grace” to describe the final act of smothering the child, leading to his death.
In 2007, the Supreme Court of Canada discredited the evidence of Dr. Smith and ordered a new trial. The fresh evidence provided by Dr.’s Pollanen and Avis was central in this determination.
Findings of the Goudge Commission
The Applicants submit that the discredited medical evidence of Dr. Smith in the Trotta case takes on greater significance when examined in the context of the findings made by the Goudge Commission.
In the Goudge Commission Report, Dr. Smith’s rise and fall as a leading expert in pediatric pathology was detailed. Over two decades commencing in 1981, Dr. Smith’s reputation as a leader in pediatric pathology grew and received recognition not only in medical but also legal circles. Having worked with the Hospital for Sick Children in Toronto in 1992, Dr. Smith was appointed Director of the newly established Ontario Forensic Pathology Unit at Sick Children’s Hospital. As noted by Justice Goudge, Dr. Smith, “...eventually came to dominate pediatric forensic pathology in Ontario. His experience seemed unequalled, and his manner broached no disagreement. He was widely seen as the expert to go to for the most difficult criminally suspicious pediatric deaths. In many of these cases, his views of the cause of death were the critical opinion, and figured prominently in the outcome.”
Before and after the Trotta case, the police and Crown placed significant reliance on Dr. Smith’s medical findings to initiate investigations of suspicious pedicatric infant deaths, and thereafter to commence prosecutions of those investigations. In a number of those cases, Dr. Smith’s medical opinion was found to be suspect and unreliable. As a result, homicide charges that were laid were withdrawn.
Trial evidence provided by Dr. Smith in pediatric death cases also drew public criticism and concern. It was not only the flawed evidence in the Trotta case, but also questionable evidence provided by Dr. Smith in a number of other pediatric death prosecutions that led to the formation of the Goudge Commission. Its mandate, as noted, was to review and report on the systemic problems in pediatric forensic pathology in Ontario. However, Dr. Smith again, as noted, was the chief catalyst for that review.
The failings of Dr. Smith were laid bare in the findings of the Goudge Commission. Although this Court is not bound by these findings, they are of assistance in assessing the merits of the Applicants’ Stay Application.
Amongst other things, Justice Goudge concluded that:
Dr. Smith violated a cardinal rule of scientific expertise especially when it is engaged by the justice system. The expert must be aware of the limits of his or her expertise, stay within them, and not exaggerate them to the Court. Dr. Smith did not observe this fundamental rule. Dr. Smith failed to understand that his role as an expert was not to support the Crown. The evidence also showed that, rather than acknowledging the limits of his expertise, Dr. Smith sometimes misled the Court by overstating his knowledge in a particular area. Dr. Smith sometimes failed to provide a balanced view of the evidence. He presented his opinion in a dogmatic and certain manner when the evidence was far from certain. There are instances where Dr. Smith offered opinions that were speculative, unsubstantiated, and not based on pathology findings. Dr. Smith did not always testify with the candor required of an expert witness. In some cases, he made false and misleading statements to the Court.
The Crown, in opposing the stay application, acknowledges that Dr. Smith made errors in his expert opinion in the Trotta case. The Crown concedes that Dr. Smith was demonstrably wrong with respect to his diagnosis of the cause of death. The Crown admits that Dr. Smith had gone beyond his expertise and engaged in speculative conclusions. The Crown concedes that Dr. Smith failed to make correct findings of fact. However, the Crown argues there is no evidence to suggest that Dr. Smith fabricated his evidence and committed perjury. At most, Dr. Smith was negligent, even grossly negligent, in his findings, but his errors were not a calculated fabrication.
Failed Oversight of Dr. Smith
In the late 1990’s, although Dr. Smith’s reputation publicly unravelled, he continued to perform autopsies. The concerns and criticisms from both the press and the public were ignored by those responsible for the oversight of his work. This oversight was the responsibility of Dr. Michael Young, Chief Coroner and Dr. David Cairns, Deputy Chief of the Ontario Coroner’s Office. As a physician, Dr. Smith was also overseen by the Ontario College of Physicians and Surgeons.
The findings of the Goudge Commission determined that the oversight of Dr. Smith from both bodies, failed. Both supervising bodies were more concerned with protecting their institutional reputations, than heeding and correcting Dr. Smith’s work.
A disciplinary hearing was held before the College of Physicians and Surgeons, reviewing alleged flawed medical opinion that Dr. Smith had provided in an investigation of a suspicious child death in 1995. Dr. Smith determined that the child had died of a blunt head injury. He advised CAS he was 99 percent sure that the child’s death was non-accidental, being caused by the mother.
Dr. Smith’s diagnosis was reviewed and subsequently disputed by two expert pathologists. Ultimately, the Crown over a two-year period determined that there was no reasonable prospect of conviction and no charges were laid.
The family of the suspect subsequently retained a further opinion from a noted pathologist who opined that Dr. Smith’s conclusion about the suspected death exceeded the boundaries of scientific and forensic evidence.
As a result, a complaint was launched by the family to the College of Physicians and Surgeons.
After four years, the hearing concluded by verbally cautioning Dr. Smith, but not calling for any further investigations, sanctions or prohibitions.
The College explained their actions to the Goudge Commission by submitting that had they received complaints about Dr. Smith from the Hospital for Sick Children and the Coroner’s Office, in addition to the private complaint being reviewed, a shorter and differently focused investigation may have been possible. However, since they received no complaints from the Coroner’s Office or the Hospital for Sick Children, a more expedited review was not available.
Further, the Goudge Commission found that the Ontario Coroner’s Office provided the Crown and Defence with misleading information regarding their review of Dr. Smith’s questionable practice in other pediatric death prosecutions. In October 2001, Dr. James Cairns, in correspondence to the Crown which was forwarded to defence counsel, made the following three representations:
1) Twenty of Dr. Smith’s cases had been reviewed;
2) There was no suggestion that Dr. Smith was incompetent or negligent in those cases; and
3) Dr. Smith was competent to conduct autopsies and was returned to the Autopsy Roster in June 2001.
As found by Justice Goudge, none of these representations were correct.
Subsequently, in July 2002, Dr. Cairns reported to the Crown that he had personally reviewed the Trotta file and determined there was a complete consistency between Dr. Smith’s opinion and that of other medical experts. He saw no contradictions and had no concern about the autopsy report or medical findings. In his opinion, nothing would be served by doing anything further or seeking any other opinions. The Goudge Commission found this report to be misleading. Dr. Cairns’ opinion was of little value since he later admitted he was not a pathologist and thus, not qualified to render any opinion as to Dr. Smith’s competence in pathology.
With the Trotta appeal pending before the Ontario Court of Appeal, the Defence in 2002 requested a further updated report from Dr. Cairns to consider the merits of an application for the introduction of fresh medical evidence. On September 27, 2002, Dr. Cairns provided his report. In a one-page report he concluded, “I have no concerns regarding the opinion by Dr. Smith and see no reason whatsoever for our office or the Crown Attorney to hire another expert.” In response to the Crown on October 2002, the Defence advised that, “I have received the brief opinion of Dr. Cairns. We will not be tendering fresh evidence unless something comes up that postdates this letter.”
As public and private concerns over Dr. Smith’s practices escalated, Dr. Young, the Chief Coroner for the Province of Ontario steadfastly supported Dr. Smith. As found by the Goudge Commission, this support was misguided. The purpose of this support was not to protect the public, but to protect the reputation of the Ontario Coroner’s Office:
As the end neared, Dr. Young was more concerned with the possibility of the adverse publicity that Dr. Smith might bring to OCCO than about the possible impact of Dr. Smith’s shortcomings on OCCO’s responsibility for high-quality death investigations. He gave no thought as to whether the office might have played a role in past wrongful convictions as a result of Dr. Smith’s work. Finally, as the last act played out, Dr. Young continued to defend the indefensible in the name of saving the reputation of the OCCO. In the end, as Chief Coroner, Dr. Young, must bear the ultimate responsibility for the failure of oversight. When he finally did act it was to protect the reputation of his office and not out of concern that individuals in the public interest may have already been harmed. Sadly, the defacto oversight of Dr. Smith that resulted was far too little, far too late.
Conduct of the Attorney General’s Department
The Applicants further submit that their ability to investigate and appeal the findings of Dr. Smith were thwarted and obstructed by the Office of the Attorney General. The Applicant, Marco Trotta, submits that these efforts culminated in Crown Counsel misleading the Supreme Court of Canada in 2007 in her submissions during the fresh evidence appeal.
The Crown vehemently denies any misconduct by the Attorney General’s Office. The Crown submits that these allegations are without foundation and manifestly spurious. The Crown argues that throughout the trial, and thereafter during the appeal periods, the Crown acted in good faith, unaware of Dr. Smith’s deficiencies until fresh medical evidence was provided by Dr.’s Pollanen and Avis. Contrary to the submissions of both Applicants, the Crown submits that it had no knowledge of the earlier concerns, criticisms and negative findings made by Mr. Justice Dunn with reference to expert medical evidence provided by Dr. Smith in the prosecution of R. v. M.S. in 1991.
In 1985, M.S., a 13-year-old was charged with manslaughter involving the death of an infant she was babysitting. The central issue in that case was the cause of the death alleged to be a violent shaking of the child.
During the course of the police investigation, Dr. Smith provided the authorities his opinion that the infant died at the hands of the babysitter when the child was violently shaken. That diagnosis was pivotal to laying the charge of manslaughter and central during the trial. At trial, Dr. Smith testified that the cause of death was a violent shaking of the infant. This diagnosis was challenged by several defence medical experts, and ultimately rejected by the trial Justice.
In acquitting the young person, Justice Dunn did not find that the M.S. case was one of conflicting expert evidence, that given the burden of proof he determined had to be resolved in favour of the Defence. Rather Justice Dunn made highly critical findings as to the credibility and reliability of Dr. Smith’s trial evidence.
Years later, Justice Goudge in his findings observed that the M.S. decision was “a harbinger of things to come” and “prophetic”, concluding “most of the weaknesses that Justice Dunn identified in Dr. Smith’s forensic pathology, reappeared in Dr. Smith’s work in criminally suspicious cases over the next decade.”
In January 1992 after the acquittal of M.S., representatives from the Hospital for Sick Children, Dr. Smith, and Crown counsel involved in the M.S. prosecution met to discuss Justice Dunn’s Reasons for Judgment. The meeting ended with all parties concluding that Justice Dunn acquitted M.S. because he did not understand the shaken baby syndrome as diagnosed by Dr. Smith. As a result, no further steps were taken to investigate, correct, and if necessary oversee the practices of Dr. Smith.
The Applicants submit that the Attorney General’s Department should have become aware, should have known, or should have at a minimum investigated and heeded the concerns raised by Justice Dunn. Yet, no further action was taken.
In the alternative, the Applicants submit that given the importance of Justice Dunn’s decision as early as 1992, the Attorney General’s Office should have disclosed this judgment to the defence bar. Having failed to do so, the defence at trial was prejudiced to be able to make full answer and defence to the charges.
I find the Applicants’ submission on these two issues to be of marginal, if any weight. In retrospect, given Dr. Smith’s discredited evidence in other prosecutions after both the M.S. decision and the Trotta case, the M.S. decision in 1992 takes on “prophetic” importance as found by Justice Goudge. However, in 1992 Dr. Smith was still cloaked with his esteemed and virtually bullet-proof reputation as an expert pathologist. Opinions of other experts who testified in the M.S. case were then disregarded. They may have raised a reasonable doubt, but raised no concern given Dr. Smith’s then unblemished reputation.
I further agree that the Crown has no obligation to conduct legal research for an accused party. The judgment of Mr. Justice Dunn was in the public forum. It was a released judgment and available for counsel to access. In any event, although in the public forum, there is no evidence to conclude that the trial Crowns in the Trotta case were aware of the Ruling of Justice Dunn and its criticisms.
Therefore, the 2009 Supreme Court of Canada decision of R. v. McNeil, (2009), S.C.C. (3), obligating the Crown to inform the Defence of potentially relevant evidence pertaining to credibility or reliability of witnesses, has no applicability to the relief sought in this matter.
Furthermore, the submission of Marco Trotta that an adverse inference may be drawn that the Appellate Crown obstructed the Defendant’s efforts for appeal before the Ontario Court of Appeal, is also rejected. Equally, the submission that the Appellate Crown misled the Supreme Court of Canada in her submissions, is rejected.
Prior to the Court of Appeal hearing in 2004, the Appellate Crown refused the Applicants’ production application for the release of Coroner’s and prosecution files involving Dr. Smith. This opposition was made on the basis of relevance, privacy, and confidentiality of third parties. This position was arguable and not without merit.
Before the Supreme Court of Canada, the Appellate Crown responded to an inquiry from the Court submitting that Dr. Smith’s trial evidence did not touch on any medical diagnosis regarding previous injuries to the infant child. Having reviewed and considered Crown Counsel’s submissions to the Supreme Court, I conclude the statements of the Appellate Crown not to be misrepresentations, but amount to no more than misstatements which had little or no bearing on the final decision rendered by the Supreme Court.
Finding of the Court Re: Stay Application
Dr. Smith was the catalyst for the Goudge Inquiry. He was also the catalyst who provided critical medical evidence that led to the convictions of both Applicants. Lastly, he was the catalyst whose evidence the Supreme Court discredited in ordering a new trial.
As previously noted, the Crown submits that although Dr. Smith was clearly wrong in his evidence, he did not lie or intentionally mislead the Court in the Trotta trial. Therefore, any flaws in Dr. Smith’s evidence do not demonstrate that his errors constitute “the clearest of cases” where the integrity of the judicial system would be irreparably prejudiced or where prejudice arises to the accused if a stay of proceedings is not granted.
I reject the submission that Dr. Smith did not intentionally mislead the Court. The medical evidence provided to the Jury by Dr. Smith was deliberately calculated and directed to secure convictions. That medical evidence was inconsistent with his initial autopsy findings that the cause of death of Paolo Trotta could not be determined. That conclusion veered 180 degrees when Dr. Smith opined in carefully chosen and subsequently proven to be medically-flawed diagnosis, that Paolo Trotta died as a result of a skull fracture and/or was asphyxiated. This diagnosis was misleading, it had no forensic or medical merit, and as Dr. Avis concluded, that diagnosis was not accidental.
The Applicants were convicted because both the Crown and the Jury erroneously relied on Dr. Smith’s then esteemed reputation and misguided diagnosis. This diagnosis was subsequently discredited by Dr.’s Pollanen and Avis.
Dr. Smith’s discredited conduct and evidence cannot be viewed in the isolated prism of the Trotta case, as submitted by the Crown. Similar discredited and flawed medical findings were made by Dr. Smith, both before and after the Trotta case as in the M.S. decision and subsequently in a number of other pediatric death prosecutions, some of which have been determined to be unlawful convictions. Tragically, Dr. Smith’s flawed evidence in all of these cases mirrors his discredited evidence in the Trotta case. Therefore, contrary to the Crown’s position, Dr. Smith’s evidence in the Trotta case was not an anomaly, but consistent with his history of securing convictions in suspicious pediatric deaths, notwithstanding medical evidence to the contrary.
As public and press concerns escalated over the practices of Dr. Smith, the Ontario Coroner’s Office sheltered and protected him. It did so for the sake of preserving the institutional reputation of its organisation at the cost of keeping the public in the dark, while permitting Dr. Smith to conduct autopsies and provide evidence before the courts. The cost of this protection was the loss of public confidence both in the Coroner’s Office and the administration of justice.
The totality of these circumstances has a bearing in determining whether the stay of proceedings is granted or not. As observed in R. v. Conway:
Abuse of process acknowledges that the courts must have the respect and support of the community in order that the administration of justice properly fulfill its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interests in the effective prosecution of criminal cases, then the administration of justice is best served by staying of proceedings.
However, the same Court continued:
It must always be remembered that the stay of proceeding is only appropriate ‘in the clearest of cases’ where the prejudice to the accused’s right to make full answer in defence cannot be remedied, or where irreparable injustice would be caused to the integrity of the judicial system if the prosecution was continued.
Regarding the issue of prejudice to the accused’s right to make full answer and defence, the Crown submits that at the retrial, it will not call Dr. Smith as a witness, or make any reference to him in evidence. The Crown will make available the evidence of both Dr.’s Pollanen and Avis who will testify, unlike Dr. Smith, that the medical cause of death of Paolo Trotta cannot be determined. The Crown submits that by focusing the prosecution in this fashion, any prejudice to the Applicants will either be negated or greatly minimised. The Crown submits that this “remedy is reasonably capable of removing prejudice” and a stay is not required.
I agree with the Crown’s proposition on this point.
Regarding the second question, even if trial fairness is not affected, would the continuation of the prosecution still cause irreparable prejudice to the integrity of the justice system. As already noted, it is necessary to determine this question on the entire history of Dr. Smith’s findings, in addition to the flawed medical diagnosis provided by him in the Trotta prosecution.
As previously noted, the stay of proceedings is a prospective rather than retroactive remedy. In Canada (Minister of Citizenship and Immigration) v. Tobias, 118 C.C.C. (3d) 442, S.C.C. at paragraph 91 the Court observed:
A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that if left alone will continue. The mere fact that the state has treated an individual shabbily is not enough to warrant a stay of proceedings. It must appear that the state misconduct is likely to continue or the carrying forward of the prosecution will offend society’s sense of justice. There may be exceptional cases in which past misconduct is so egregious that the mere fact of going forward in light of it will be offensive. But such cases should be relatively rare.
The Supreme Court of Canada has already discredited the evidence of Dr. Smith in the Trotta trial. The Goudge Commission further discredited evidence Dr. Smith provided in other pediatric death prosecutions. Dr. Smith’s conduct in the Trotta case was not an anomaly, it was not an isolated incident. In this context the state through the evidence of Dr. Smith has mistreated the Applicants.
However, the Crown submits that in a retrial that mistreatment will not be perpetuated since it does not intend to call Dr. Smith to testify. In lieu of Dr. Smith, the Crown intends to make available the balanced evidence of Dr.’s Pollanen and Avis for the Jury to consider.
Although this court is greatly disturbed by the stain that Dr. Smith and his superiors have left on the administration of justice, this past conduct is not so egregious that “irreparable injustice would be caused to the integrity of the judicial system if the prosecution was continued”.
It must be kept in mind that although this abuse of process application is largely focused on Dr. Smith, the retrial is not about Dr. Smith, but about the deceased, eight-month-old Paolo Trotta.
At a retrial even absent medical evidence of causation of death, the Crown still has an evidentiary basis to proceed with the prosecution.
Dr. Pollanen aptly set out the distinction between the lack of medical evidence as to cause of death, and the legal test to be applied in these circumstances:
On this basis the best cause of death of Paolo Trotta is unascertained. My definition of the cause of death as unascertained is that there is not emperical/medical evidence that allows a pathologist to decide on a definitive cause of death. Logically this implies that both natural and unnatural causes of death are possible based on the emperical facts evidence. This applies to the death of Paolo Trotta. Whatever inferences can or should be made about an unlawful killing in the Trotta case does not flow directly from the unascertained cause of death. However, the fact the death occurred after chronic child abuse may be relevant in making a judgment about an unlawful killing. Of course making a judgment about an unlawful killing is not the duty or responsibility of the pathologist; that duty rests solely with the trier of fact.
A stay of proceedings is truly a drastic remedy. A stay of proceedings is tantamount to an acquittal in that it effectively brings the criminal proceedings to a final conclusion in favour of the accused because of state misconduct both in the past and anticipated to continue in the future. As already found, past misconduct will not be revisited in the retrial. Further, the evidence presently available even absent proof of medical causation of death still provides a basis on which to continue the prosecution.
It is incumbent on the court to consider the compelling public interest in having allegations of criminal conduct determined on their merits. All criminal allegations are serious, particularly so when they involve the death of an infant child.
Having considered all of the submissions, and giving full measure of the gravity of Dr. Smith’s flawed and misguided conduct, I am satisfied that the community sense of fair play and justice would not be offended by ordering a new trial. Accordingly, the Applicant’s application to stay of the proceedings for abuse of process is dismissed.
The interests of the community and the administration of justice are not undermined by having a jury properly instructed be given the task to consider the evidence and decide the case.
Application to Reduce the Charge to Second Degree Murder
Marco Trotta submits that the Court exercise its discretion in this stay of proceedings application, to reduce the pending charge of second degree murder to manslaughter. The Applicant argues that the charge of manslaughter is the appropriate offence to put to the Jury since the Crown concedes that it cannot prove the medical cause of death of Paolo Trotta.
On the basis of R. v. Nette, (20020, 158 C.C.C. (3d) 486 at paragraph 77 S.C.C., I dismiss the Applicants argument:
The Crown is not required to establish the medical cause of death in a homicide case although it almost inevitably does so. Nor is the Crown required to demonstrate that a specific act or event caused the death, although the Crown usually attempts to do so. The Crown must prove that the death was caused by an unlawful act and that the accused is responsible for that act.
Mr. Justice Doherty cited this principle in dismissing the Applicant’s relief to quash the homicide related counts as being unreasonable. He found in paragraph 31 of his judgment:
There was cogent, if not overwhelming evidence that P.T. was a battered child and that M.T. was his abuser. On the evidence, the jury could find that the physical abuse escalated during P.T.’s life and continued until very shortly before P.T.’s death. On the totality of this evidence, a reasonable jury could conclude that the pattern of abuse of P.T. by M.T. culminated in P.T.’s death at the hands of M.T. This finding was available even if the jury could not decide the exact nature of the final assault.
In 2007, the Supreme Court of Canada in ordering a new trial came to the same conclusion, in dismissing the Applicant’s argument that they be acquitted on the counts of murder and criminal negligence causing death. The Court stated in paragraph seven:
We are satisfied that acquittals would at this stage be inappropriate, since we are not prepared to say that there remains no evidence upon which a properly instructed jury, acted reasonably, could find the Appellants guilty to homicide related offences of which they were convicted at trial.
Application to Prohibit Dr. Chan from Testifying at the Retrial
The Applicants submit that the Court exercise its discretion to prohibit the Crown from calling Dr. Chan at the retrial because the Supreme Court of Canada found his evidence to be unreliable.
The trial transcript confirms serious flaws in the autopsy performed by Dr. Chan, since he failed to preserve evidence that may rule out both natural and unnatural causes of death. Both Dr.’s Pollanen and Avis have concluded that the original autopsy was not performed properly, even given the standards of the time.
After completing the autopsy, Dr. Chan concluded that Paolo Trotta died as a result of SIDS, Sudden Infant Death Syndrome. No criminal charges were laid at that time against the Trottas.
Subsequently, after the body was exumed and re-examined by Dr. Smith, Dr. Chan abandoned his original diagnosis and acceded to the diagnosis made by Dr. Smith. As events later proved, Dr. Smith’s diagnosis was seriously flawed.
Having abandoned his original diagnosis of SIDS, Dr. Chan testified that Paolo Trotta died as a result of a head injury or asphixia. To the extent that his autopsy findings contradicted this evidence, Dr. Chan was openly critical of his own autopsy and unquestionably deferred to the findings made by Dr. Smith.
Given Dr. Chan’s errors and contradictions, the Supreme Court of Canada found him to be an unreliable witness. Anisa Trotta submits that it would be unfair to permit him to testify. She submits that if Dr. Chan were permitted to testify, she would be forced to discredit him by using the evidence of Dr. Smith. To put her in the position of adducing the evidence of Dr. Smith to discredit Dr. Chan would be improper since no jury for any purpose should ever hear the opinions of Dr. Smith.
In R. v. Buric, 28 O.R. (3d) 737, the trial justice found that a Crown witness was tainted. He determined that the admission of that tainted testimony would render the trial unfair. Rather than grant a stay of proceedings, the trial justice ordered that the tainted witness be prevented from giving evidence at trial. The accused was acquitted, and the Crown appealed.
The Court of Appeal found:
The admission of evidence, which may be unreliable, does not per se render a trial unfair. It is for the jury to assess the quality of the evidence. The trial judge erred in concluding that the tainting was a question of admissibility of evidence rather than its weight.
The nature and extent of any cross-examination of Dr. Chan is within the discretion and control of the defence. Reference to Dr. Smith, although an unhappy choice to make in cross-examination, is for the defence to assess and make. It is then open for the jury to assess the credibility or lack thereof of the witness being cross-examined.
In the Buric decision, the Court of Appeal found that the exclusion of the evidence of the tainted witness would have the same practical effect as a stay of proceedings. In the present matter, the absence of Dr. Chan’s testimony would terminate the prosecution of all charges. This result would have the same practical effect as a stay of proceedings, which the Court has already declined.
Anisa Trotta’s Application for Stay Because of Loss of Memory
Anisa Trotta submits that a stay of proceedings be granted because she is unable to make full answer and defence to the charges she is facing. The Applicant submits that 16 years have passed since the death of her child. Over that time her memory has faded as to events that had occurred. Although she chose not to testify at the first trial, that decision was made in light of the nature and strength of the case that as presented.
Other witnesses who did choose to testify presently have the ability to review their trial evidence. The Applicant submits she has been deprived of that choice.
The Court recognises that a delay of 16 years may affect and erode memory. However, other than the general submission, there has been no affidavit or viva voce evidence introduced to support the argument proposed.
Should the Applicant choose to testify at her retrial, as with every other witness, the weight of her evidence would be assessed by a jury. A less than perfect memory after 16 years is a factor the jury may consider to be either favourable or contrary to the credibility of the Applicant. That determination is best made by the trier of fact.
Accordingly, Anisa Trotta’s application on this argument is also dismissed.
Lastly, Anisa Trotta’s submission that the Crown not be permitted to read into evidence the testimony of Dr. Edward Glazier at the retrial is more appropriately to be determined by the trial justice.
For all the aforementioned reasons, the Applicant’s relief on all grounds as sought is dismissed"
Harold Levy...hlevy15@gmail.com;
