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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E. The Goudge Report and Joshua’s Case:
49. Commissioner Goudge made a number of findings in his Report that related to the Appellant’s case. He commented that Dr. Smith himself acknowledged at the Inquiry that he had been wrong to attribute significance to microscopic hemorrhages in Joshua’s neck and “explained that his error was in overestimating his own dissection skills.” The Commissioner observed that Dr. Smith had also inappropriately used events extraneous to the pathology of the case in forming his opinions, namely some of the matters found out by the police during their investigation of Joshua’s medical history. The Commissioner, after noting two other cases in which Dr. Smith had done this, wrote:
In Joshua’s case, in diagnosing the cause of death as asphyxia, Dr. Smith admitted to placing undue weight on the remote history provided to him that Joshua’s mother had stated, one month before Joshua’s death, that she could not take it anymore and was going to smother the baby. In none of these instances was Dr. Smith transparent about using or disregarding this information.
The Commissioner was critical of Dr. Smith’s opinions on the case, and of his use of language at the preliminary hearing.
Goudge Report, Vol. 2, at 147, 177-178, 187-188; Vol. 3, at 387-8
PART III
THE LAW:
Introduction:
50. The rules for the admissibility of fresh evidence are set out in Palmer:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial...;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief; and,
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
R v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) at 205
1. DUE DILIGENCE:
51. The Appellant, Sherry Sherret-Robinson, entered no defence to the set of facts read in by the Crown at trial, but continued to deny her guilt to the Court. Her case is, therefore, somewhat different from the guilty plea cases wherein an accused has sought to set aside a guilty plea based on fresh evidence. However, even if the Appellant had pleaded guilty to infanticide, a powerful case can be made that due diligence was exercised in her case. At the time of her trial, Dr. Smith had an outstanding reputation in his field, and in the criminal justice system. He was Canada’s most frequently consulted pediatric pathologist. He clearly believed that the Appellant had killed her son, and his opinion was recorded as such during a meeting with the Crown and Police on February 8, 2006. It is only in recent years that Dr. Smith’s reputation has been undermined such that his opinions no longer command any respect in his field. In 2001, he was removed by the Chief Coroner from the roster of forensic pathologists permitted to conduct autopsies in cases of suspicious deaths. In 2008, the Goudge Report drew damning conclusions about his work, his ethics and his honesty. In 1999, when the Appellant’s trial took place, Mr. Hillyer, the Appellant’s trial counsel, knew nothing of what was coming.
52. Mr. Hillyer concludes his affidavit by stating as follows:
I feel strongly about the Applicant’s case. It was a case that I never felt comfortable about. At the time of the nolo contendere type proceedings in January, 1999, I believed that it was an acceptable resolution for the Applicant and it was one that she instructed me to consummate. After all, at the time, Dr. Smith was a witness with a considerable reputation. If he thought Joshua was probably a victim of homicide, a jury might well have come to the same conclusion. In the absence of evidence of a natural cause of death, a conviction for second degree murder, in my opinion, was entirely possible. Now, of course, it would be different. But neither I nor the Applicant had reason to believe then that Dr. Smith’s reputation might subsequently be shown to be undeserved. I have read Dr. Pollanen’s reports of March 28, 2006 and August 10, 2006. Unlike Dr. Smith, he found no evidence of a homicidal cause of death, and noted a readily explicable cause of death; that Joshua had accidently died as a result of a hazardous sleeping environment. I have also read the two reports of Professor Crane on the case. If I had had these opinions prior to January 4, 1999, I am certain that I would have counselled the Applicant in the strongest possible terms to vigorously defend herself on the murder charge. I am equally certain that the Applicant would have agreed to this. I am reasonably certain that in these circumstances the Crown would likely not have proceeded with the case.
This provides a fair summary of events as they stood when the Appellant entered her plea in 1999, and events as they now stand in 2009.
Affidavit of Bruce Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 12
Affidavit of Alison Craig, November 11, 2009, Fresh Evidence Materials, Tab 3, para. 2
2. THE FRESH EVIDENCE IS RELEVANT AND
DECISIVE, AND WOULD HAVE AFFECTED THE VERDICT:
53. The remaining three Palmer tests, on the facts of this case, overlap and can be best dealt with together. The Appellant’s case has two primary features to it:
(a) Is there any evidence remaining of a non-accidental cause of death?
(b) Is there evidence which supports an accidental death?
(a) Is there evidence remaining of a non-accidental cause of death?
54. At the preliminary hearing, Dr. Smith gave his opinion that Joshua died of asphyxia likely caused by smothering or suffocation. He also claimed to have found a skull fracture. Dr. Pollanen, Dr. Crane and, within the bounds of his expertise, Dr. Ramsay completely discredit Dr. Smith’s opinions. They refute the existence of a skull fracture. They consider the cause of death to be “undetermined” or “unascertained”. For both the Appellant and the Respondent, they are experts of the highest standing. Their opinions are uncontroversial and reliable. While they cannot actually eliminate a non-accidental cause of death, there is today no evidence of such a cause.
(b) Is there evidence which supports an accidental cause of death?
55. Dr. Pollanen and Dr. Crane both believe that Joshua may have died as a result of his playpen being an unsafe sleeping environment. Dr. Pollanen noted that:
Forensic pathologists have become increasingly aware that unsafe sleeping environments are often associated with sudden death in infancy.
Dr. Pollanen appended a paper to his report: Kemp et al. “Unsafe Sleeping Practices and an Analysis of Bedsharing Among Infants Dying Suddenly and Unexpectedly: Results of a Four-Year, Population-Based, Death-Scene Investigation Study of Sudden Infant Death Syndrome and Related Deaths. In their abstract, the authors state:
Prone sleep and unsafe sleep surfaces increase the risk of sudden infant death. Recent epidemiologic studies also suggest that when an infant’s head or face is covered by bedding, or when a sleep surface is shared with others, the risk of dying increases. The inference of a causal role for these risk factors is supported by physiologic studies and by the consistent finding that fewer infants die when risk factors are reduced. The prevalence of most of these risk factors in infant deaths in the United States is uncertain.
The authors studied over 100 cases of infant deaths in St. Louis, Missouri in coming to their conclusions.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, p. 15
56. Recurring observations of both professionals and non-professionals in the early stages of the investigation into Joshua’s death were the nature of the playpen and the amount of bedding in the playpen. The Appellant herself told the police that she thought the quantity of bedding could have contributed to Joshua’s death. Dr. Pollanen explains in his report that bedding of the kind in Joshua’s playpen can cause entrapment and head-covering. This can result in breathing difficulties, and the re-breathing of exhaled air. Dr. Pollanen referenced the Kemp et al Study, and wrote:
In the St. Louis study, cases of infants dying suddenly and unexpectedly in St. Louis over four years with the cause of death of SIDS, accidental suffocation and undetermined (unascertained) were analysed. A total of 119 infants were studied. Four major scene findings were identified: (i) 61% of infants were prone-positioned; (ii) 76% of infants died while sleeping on a surface not designed for infant sleeping; (iii) the face or head was covered by bedding in 29% of infants; and (iv) bed sharing occurred in 47% of the cases. Based on the analysis of the cases, certain situational factors may be mechanically significant in some cases of sudden infant death, including: entrapment in the sleeping apparatus (e.g. wedging between pillows or hard surfaces); head covering by bedding; and prone positioning on soft and highly depressible surfaces, rather than firm surfaces. These factors may lead to the development of a micro-environment that results in the re-breathing of exhaled air, and possibly over heating (‘thermal stress’) thereby causing death. Sometimes simply the position of the infant may limit the respiratory excursion of the chest. Although we have not published this data, our experience in Ontario is very similar to the St. Louis study. In fact, an unsafe sleeping environment is a well-known and well-recognized factor that contributes to infant deaths in Ontario each year.
Dr. Pollanen provided five major conclusions at the end of his report, the last of which was:
The cause of death is unascertained, but the scene supports an accidental asphyxial death in an unsafe/hazardous sleeping environment.
Professor Crane was of the same view, and told Commissioner Goudge that he thought Joshua’s sleeping environment was a “significant possibility” as the cause of death and “more likely” than any other. Dr. Milroy and Dr. Butt agreed with these opinions. These opinions come from pathologists who are pre-eminent in their field, with international reputations to be envied. They meet the Palmer standards.
Report of Dr. Pollanen, March 28, 2006, Fresh Evidence Materials, Tab 4, pp. 14-16
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 19, Fresh Evidence Materials, Tab 12, p. 247
Evidence of Professor Crane, Dr. Butt and Dr. Milroy, Inquiry into Pediatric Forensic Pathology in Ontario, November 22, Fresh Evidence Materials, Tab 13, p. 90
57. In these circumstances, even though the Appellant did not defend herself against the allegation of Infanticide, or call evidence to dispute the facts read in to support the allegation, this Court can still intervene, in the interests of justice, and admit the fresh evidence because it establishes that a miscarriage of justice occurred. The Appellant was convicted of a crime which the fresh evidence suggests never occurred. The fresh evidence not only meets the Palmer tests but also explains why the Appellant did not put up a defence at trial.
See R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 (Ont.C.A.) at 9
R. v. Taillefer (2003), 179 C.C.C. (3d) 353 (S.C.C.) at 389
Some additional observations:
58. This case is not unique, and cases such as these transcend national boundaries. Pathologists are always at the forefront of an investigation into a suspicious death and, like any other professionals, they will make mistakes. The consequences of their mistakes can be profound. In recent years, the Court of Appeal (Criminal Division) in England has grappled with cases of child deaths that have turned into miscarriages of justice. The cases are similar to Joshua’s: sudden natural pathologically unexplained deaths are converted into homicides. The tragedy of these cases was well expressed by the English Court of Appeal in Cannings:
Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and any civilized community, that is abhorrent.
These words can be adapted to the Appellant’s case. She not only went to prison for Joshua’s death, but also lost her other child, Austin, because of Dr. Smith’s findings.
R. v. Cannings, [2004] 2 Cr.App.R. 7 at para. 179
R. v. Harris, [2006] 1 Cr.App. R. 5
See also R. v. Nicholls (1998) unreported; June 12, 1998 [E.W.C.A.]
59. In 1995, the Ontario Chief Coroner’s Office circulated an Infant Death Investigation Protocol. Dr. Smith, and others, played an important part in developing the Protocol, as did Dr. Young, then the Chief Coroner, and Dr. Cairns, the Deputy Chief Coroner. The Protocol was designed to ensure that all infant deaths were investigated thoroughly. Unfortunately, in the process, it urged psychologists to “think dirty.” It advised:
Unfortunately, in this day and age, CHILD ABUSE IS A REAL ISSUE and it is extremely important that all members of the investigative team “THINK DIRTY”. They must actively investigate each case as potential child abuse and not come to a premature conclusion regarding the cause and manner of death until the complete investigation is finished and all members of the team are satisfied with the conclusion. (original emphasis)
Commissioner Goudge said this about “Thinking Dirty” in his Report:
[I]n testimony, Dr. Cairns analogized the “think dirty” message to his experience in emergency medicine, in which physicians must assume that the presenting symptoms in their patients indicate the most critical health risk and act on that basis until it is proven otherwise. He used the example of a patient presenting with chest pain who is assumed to be suffering from a heart attack until that explanation could be ruled out. For him, the most critical health risk in this context was undetected child abuse. Apart from the point raised by some witnesses that a wrongful conviction is also an unacceptable scenario, this analogy demonstrates a major flaw in the “think dirty” approach. Whereas clinical medicine properly approaches treatment by considering the worst possible explanation, forensic pathologists fulfill a very different role. They are providing information that may influence criminal proceedings. In this context, it is dangerous and inappropriate to leave any impression that forensic pathologists begin with a premise of foul play that must be disproved. Their objectivity requires that any such impression be avoided. They must “think truth” not “think dirty”. They must also be seen to do so. In circulating the 1995 Infant Death Investigation Protocol, Dr. Cairns and Dr. Young were motivated by legitimate concern about child abuse, backed up by their professional experience with pediatric death investigations. However, injecting a “think dirty” approach into pediatric death investigations was a serious error that created both an unfortunate perception and a risk of skewing outcomes.
Recommendation 69 of the Commissioner’s report was as follows:
a) Evidence-based forensic pathology is incompatible with an approach of “thinking dirty.” It, instead, involves keeping an open mind to the full range of possibilities that the evidence might yield, without preconceptions or presumptions about abuse, and collecting evidence both to support and to negate any possibilities.
b) “Thinking truth,” the orientation now adopted by the Office of the Chief Coroner for Ontario, accurately captures the appropriate approach to forensic pathology and helps promote an evidence-based culture.
In 1996, when he did the autopsy on Joshua, Dr. Smith was working in this“Thinking Dirty” regime. Goudge Report, vol. 2, “Systemic Review”at p. 110-114
Goudge Report, vol. 3, “Policy and Recommendations” at p.372-377
60. Marshall J.A. spoke of the same kind of preconceptions employed by the attending pathologist, Dr. Hutton, in the Newfoundland case of Dalton. He said:
It is noteworthy that the foregoing conclusion conforms with the assumption with which Dr. Hutton appears to have approached his investigation into the cause of the death. It is clear form his testimony the bruising on this thirty-one year old woman’s body, who had ‘no medical history of any serious natural disease ...’ fuelled his suspicion at the outset that Mrs. Dalton had met her death by foul play. A reading of his evidence gives the distinct impression that this assumption was operative throughout his investigation. For example, Dr. Hutton made repeated references to the term ‘assailant’ in discussing the injuries observed on the body. Moreover, in the course of his cross-examination, on being questioned on his suggestion that certain bruises and abrasions could have been ‘assailant marks’, he openly conceded that he made the assumption that there had been an assailant at the start of the procedure and approached the autopsy on the basis that a homicide had occurred, whilst explaining: ‘I do that for everyone. That’s just my nature and it’s the nature of forensic pathologists.’ It is evident therefore, that Dr. Hutton approached the inquiry into the death of Mrs. Dalton assuming she had been murdered, and his conclusion that she died as a result of an ‘assault and then a manual strangulation with a right hand’ was consistent with that premise. (emphasis added)
R. v. Dalton, [1998] 163 Nfld & P.E.I.R. 254 (Nfld.C.A.)
Harold Levy...hlevy15@gmail.com;
