PUBLISHER'S NOTE: THE ACQUITTAL OF SHERRY SHERRET, DIRECTED ON MONDAY DECEMBER 7, 2009, BY THE ONTARIO COURT OF APPEAL, WITH THE CONSENT OF THE CROWN, IS AN ENORMOUS TRIBUTE TO THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED (AIDWYC), WIN WAHRER, ITS DIRECTOR OF CLIENT AFFAIRS, AND THE THREE LAWYERS WHO HANDLED HER CASE: JAMES LOCKYER, ZACHARY KERBEL AND ANDRAS SCHRECK; THIS BLOG IS PLEASED TO PRESENT FOR OUR READERS THE FRESH EVIDENCE FACTUM FILED ON MS. SHERRET'S BEHALF IN THE ONTARIO COURT OF APPEAL. IT IS A MASTERFUL DOCUMENT WHICH MAKES VERY CLEAR THE ROLE PLAYED IN THIS UGLY MISCARRIAGE OF JUSTICE BY DR. CHARLES SMITH - AND THE COMPLEX PROCESS BY WHICH IT WAS FINALLY UNRAVELLED. I HAVE CHOSEN TO RUN THE DOCUMENT IN FIVE PARTS BECAUSE OF ITS LENGTH.
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3. THE APPROPRIATE VERDICT ON APPEAL;
61. If the Court finds that the fresh evidence should be admitted, the Appellant’s conviction for Infanticide must be quashed. Pursuant to section 686(2) of the Criminal Code, where a court of appeal allows an appeal and quashes a conviction, it may direct a verdict of acquittal or order a new trial. In Stolar, McIntyre J. said:
... if [the Court] should be of the view that the fresh evidence is of such nature and effect that, taken with the other evidence, it would be conclusive of the issues in the case, the Court of Appeal could dispose of the matter then and there. Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal, but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact. This approach is consistent with that taken in Palmer where it was said:
Because the evidence was not available at trial and because it bears on a decisive issue, the inquiry in this case is limited to two questions. First, is the evidence possessed of sufficient credibility that it might reasonably have been believed by the trier of fact? If the answer is no that ends the matter but if yes the second question presents itself in this form. If presented to the trier of fact and believed, would the evidence possess such strength or probative force that it might, taken with the other evidence adduced, have affected the result? If the answer to the second question is yes, the motion to adduce new evidence would have to succeed and a new trial be directed at which the evidence could be introduced.
The statement must be read, however, subject to the power of the Court of Appeal to deal with the matter when the proffered evidence is clear and conclusive of the result. (Emphasis added).
R v. Stolar (1998), 40 C.C.C. (3d) 1 (S.C.C.) at.10
62. The Appellant’s case resembles that of Mullins-Johnson. As a result of flawed pathology, Mr. Mullins-Johnson was convicted at trial of the suffocation/strangulation of his four year old niece, Valin. Like Sherry Sherett-Robinson, Mr. Mullins-Johnson always maintained his innocence. As in Ms. Sherett-Robinson’s case, in Mr. Mullins-Johnson’s case the fresh evidence of forensic pathologists established that there was no pathological evidence of a homicidal cause. As in Ms. Sherett-Robinson’s case, in Mr. Mullins-Johnson’s case it was Dr. Pollanen who first provided the opinion that challenged the opinions given at trial. A material difference in the two cases is that, in the Appellant’s case, the new opinions draw on the evidence of Joshua’s sleeping environment and unsafe bedding to postulate a likely theory as to the actual cause of Joshua’s death. The new pathologists were unable to present a single likely cause of Valin’s death in Mullins-Johnson’s case, only a number of possible causes. Nevertheless, the evidence in his case was such that the Court of Appeal, after a ministerial reference, had no hesitation in acquitting Mr. Mullins-Johnson of the murder on his appeal.
Reference re: Mullins-Johnson (2008), 228 C.C.C. (3d) 505 (Ont.C.A.)
63. In Hanemaayer, 19 years after Mr. Hanemaayer’s guilty plea to break and enter and assault charges, new evidence became available which established that a third party had committed the crimes. The Court of Appeal entered verdicts of acquittal on both charges. Rosenberg J.A. said:
As a necessary corollary of the power to receive fresh evidence in these circumstances, the court has the power to set aside the guilty plea in the interests of justice, even though many years have passed. This is obviously one of those cases. The fresh evidence proves beyond a reasonable doubt that the appellant did not commit the offences to which he pleaded guilty. One miscarriage of justice would be compounded by another if this court had no power to intervene. As I have said, the Crown agrees that this is a proper case for setting aside the guilty pleas and entering acquittals.
The same considerations apply to the Appellant’s case. Many years have passed since her conviction and it is in the interests of justice that it be set aside. This Court has the power to intervene to bring a miscarriage of justice to an end, and the just way to do it, on the evidence that now exists, is to enter a verdict of acquittal.
R. v. Hanemaayer (supra) at 9
PART IV
ORDER REQUESTED;
64. It is respectfully submitted that the fresh evidence of Dr. Pollanen, Dr. Ramsay and Dr. Crane should be admitted along with the evidence of the Appellant and her trial counsel which explains her decision not to defend the charges at her trial, the conviction for Infanticide quashed, and a verdict of acquittal entered.
65. The Appellant estimates oral argument to take 40 minutes.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 13th DAY OF NOVEMBER, 2009.
______________________
JAMES LOCKYER
______________________
ZACHARY KERBEL
______________________
ANDRAS SCHRECK
Counsel for the Appellant
AUTHORITIES TO BE CITED
R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 (Ont.C.A.)
R. v. Taillefer (2003), 179 C.C.C. (3d) 353 (S.C.C.)
R. v. Cannings, [2004] 2 Cr.App.R. 7
R. v. Nicholls (1998) unreported; June 12, 1998 [E.W.C.A.]
R. v. Dalton, [1998] 163 Nfld. & P.E.I.R. 254 (Nfld.C.A.)
Reference re:. Mullins-Johnson (2008), 228 C.C.C. (3d) 505 (Ont.C.A.)
Harold Levy...hlevy15@gmail.com;
