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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4. THE APPELLANT’S ARREST AND RELEASE ON BAIL:
15. On March 7, 1996, the police interviewed the Appellant and Peter Robinson at the police station. It was apparent from the interviews that the police believed that the Appellant had murdered Joshua. After the interviews were over, the police and Northumberland Children’s Aid apprehended the Appellant’s other son Austin. He was then 19 months old. On March 17, 1996, the Appellant was arrested and charged with first degree murder. She was granted judicial interim release a week later.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 12
16. On April 11, 1996, a meeting was held that was attended by the Crown, Sheila Walsh, the two officers-in-charge, the coroner, Dr. Smith and Dr. Becker. S/Sgt. MacLellan’s notes of the meeting included the following:
- Pathologist report
- Significant points 1.3 hemorrhage in neck (fresh)
1.4 cerebral edema (swelling of brain)
could be from slow death
could be from bruises on head
3. Contusions of scalp
Both are consistent with someone right handed pushing baby’s head down.
Handwritten Notes of S/Sgt. G. MacLellan, April 11, 1996, Appeal Book, vol. 1, p.336
17. Then, on January 15, 1997, Ms. Walsh wrote to defence counsel in the following terms:
I have just been informed by Dr. Smith that one of the microscopic slides from the post mortem discloses a skull fracture. Dr. Smith apparently just realized that this fracture is not noted in his report. I have asked Dr. Smith to send me a description of the fracture and will disclose this as soon as I receive it.
On January 17, 1997 and April 18, 1997, Ms. Walsh wrote to Dr. Smith for clarification regarding the skull fracture but seems to have never received a reply.
Letter from Ms. Walsh to Mr. Hillyer, January 15, 1997, Appeal Book, vol. 1, p. 17
Letter from Ms. Walsh to Dr. Smith, January 17, 1997, Appeal Book, vol. 1, p. 18
Letter from Ms. Walsh to Dr. Smith, April 8, 1997, Appeal Book, vol. 1, p. 19
5. THE PRELIMINARY HEARING:
18. The preliminary hearing was held in Belleville before His Honour Judge S. Hunter commencing on January 27, 1997. Due to problems with Dr. Smith’s availability, it took a year to complete. Dr. Smith, himself, testified on January 12, 1998. In his testimony, he attributed Joshua’s death to “asphyxia” and said that his post-mortem findings were “consistent” with suffocation or smothering by a third party. He referred to hemorrhages in the neck tissues visible under the microscope, which he described as “disconcerting”. He was asked:
Q. Did your post mortem reveal anything unusual that caused you concern with respect to whether this is a non-accidental or accidental suffocation?
A. Let me make a couple statements about that. First of all, I can’t tell you for sure how the asphyxia occurred. You’ve suggested suffocation. I can’t tell you for sure it’s suffocation, though, though I am certainly highly suspicious of that. So that’s the first statement. The second is, is that there was some microscopic evidence of hemorrhage in the neck tissues. And that is certainly a disturbing finding which would, would lend support to, to the suggestion or to a hypothesis that this is a suffocation-type of death.
Dr. Smith described the hemorrhages as having occurred “either right around the time of death or in a short period of time prior to death.” This finding, he testified, precluded a diagnosis of Sudden Infant Death Syndrome (SIDS) as the cause of death. Dr. Smith described Joshua’s left ankle fracture, which had been noted in x-rays by the radiologist, Dr. Babyn, as a “healing” fracture. He said:
[It] is a form of injury, which in infancy is, it has a high degree of specificity for non-accidental injury. That is to say it is, it is as classic an indicator of non-accidental injury as one can find with bony injuries in young people.
Dr. Smith testified that there was evidence of swelling of Joshua’s brain, a finding consistent with asphyxia but inconsistent with SIDS.
Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, vol. 1, p. 24/25-30/15
19. Dr. Smith next spoke of the skull fracture. He testified that Joshua had a healing skull fracture, not visible to the naked eye nor able to be seen by x-ray. It was what he described as “a chance finding on microscopic examination.” He was unable to say precisely where, within the skull, the fracture was (because he had not recorded exactly from where he had taken the sample that revealed the fracture under the microscope) but believed it was most likely from the area between Joshua’s right ear and the top of his skull. In cross-examination, Dr. Smith acknowledged that the skull “fracture” could have been no more than a “variation” in the normal “pattern of sutures of an infant skull”; yet, despite this concession, Dr. Smith clearly thought otherwise. He did not attribute this healing fracture as the cause of Joshua’s death as such, but described skull fractures in infants as “worrisome”.
Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, vol. 1, p. 26/20-27/15, 27/30-28/10
20. At the end of his examination in chief, Dr. Smith was asked:
Q. Now you may have already answered this indirectly, Dr. Smith, but are you able to express an opinion as to what is more probable in this case, accidental or non-accidental death?
He responded:
A. If I take all of the information and not just the, not just limit the autopsy finding simply to the, those related to asphyxia only, in my opinion it’s more likely that Joshua died on a non-accidental basis than on an accidental basis; however, I can’t be absolute on that and if I dare use a term which is one that you better understand than I, which is that of “beyond a reasonable doubt”, I can’t use that kind of terminology to support my opinion. I can, I’m, you know, I’m certainly very suspicious of a non-accidental cause of Joshua’s death. If I was a betting man, I would bet that it is, but that’s based on pure probability alone, but I can’t go to a level of certainty using the kind of terminology that you’re familiar with.
Evidence of Dr. Smith, Preliminary Hearing, Appeal Book, Vol. 1, p. 31/20-32/5
21. At the conclusion of the preliminary hearing, the Appellant was committed for trial on the charge of first degree murder. An Application to Quash was brought in the Superior Court and, on May 26, 1998, the application was granted by Mr. Justice Lally of the Superior Court, who quashed the committal for trial on the charge of first degree murder and substituted a committal for second degree murder.
Endorsement of Lally J., May 26/98, Appeal Book, vol. 1, p. 370
Affidavit of B. Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 3
6. EVENTS LEADING UP TO THE TRIAL:
22. The Appellant and her trial counsel, Bruce Hillyer, address in their affidavits filed on the appeal how the case unfolded at trial. The Appellant describes the emotional consequences of being accused of murdering Joshua, the shame and humiliation that she suffered, and the fear and the strain it caused to her marriage and to her parents’ marriage. She remembers Dr. Smith testifying at the preliminary hearing and what he said. She relates her fears for her elder son, Austin. She felt despair at her situation.
I had no hope for the future and felt that my fate was such I would probably be convicted of murder even though I had done nothing wrong.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 13 to 17
23. The Appellant was very worried about her other child Austin. He was apprehended two weeks before her arrest and placed in a foster home. She had limited supervised access to him for three hours each week. She liked the foster parents and began to feel that it might be best for Austin if she let him go. She describes her eventual decision in her affidavit:
... knowing that I was probably going to prison, I was more able to come to terms with losing Austin, and Austin losing me. I felt that I had no choice but to be separated from him. Two days before my sentencing in June, 1999, I signed the papers to release Austin for adoption by his foster parents. I learned that loving included letting go. However, his adoptive parents have allowed me to maintain telephone contact with them, and permit (and encourage) me to write to Austin twice a year on his birthday and at Christmas, and to buy him presents. I have lots of photographs of him, and he has lots of photographs of me. His new parents keep me informed of his progress at school, and other aspects of his life. Of course I still love him but I struggle with knowing that, because so much time has gone by, he must remain with his adoptive parents until he reaches at least 18, as anything else would disrupt his life and risk his well being. I have recently telephoned Northumberland Children’s Aid and asked them to tell Austin’s parents this. Of course, I would love to see him in person, but that is up to his adoptive parents.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, paras. 14, 15, and 18
24. The Appellant always denied to her counsel, and all the professionals with whom she came into contact, that she had done anything to Joshua to cause his death. Mr. Hillyer states in his affidavit:
I can state categorically that the Appellant always denied to me that she had done anything to cause Joshua’s death. She was unable to explain Joshua’s skull fracture or neck hemorrhages or ankle fracture. She likewise insisted on her innocence in all her meetings with psychiatrists and psychologists whose reports were filed with the Court on her sentencing hearing. She explicitly denied any wrongdoing as well in her interview with the probation officer who prepared her pre-sentence report.
The Appellant states in her affidavit:
The reports filed with the Court in 1999 demonstrate my insistence that I never harmed Joshua. Psychiatric and psychological reports from Dr. Ruth Bray, Dr. Stephen Hucker, Dr. Karen Smith and Dr. Arthur Wolfgart, and my Pre-sentence Report set out at length my denials that I had in any way harmed Joshua. As well, my husband knew that I did nothing to harm Joshua.
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 19
Affidavit of the Bruce Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, para. 10
25. Dr. Ruth Bray, a forensic psychologist, assessed the Appellant in October, 1998 prior to her trial. She stated in her report:
[Sherry] denied having ever seriously contemplated doing anything which she knew would hurt Joshua.
Dr. Stephen Hucker, a forensic psychiatrist at the Faculty of Health Sciences, McMaster University, also assessed the Appellant at the request of her counsel in 1998. In his report of December 28, 1998, Dr. Hucker wrote:
SUBJECT’S ACCOUNT OF THE ALLEGED OFFENSE:
On the night of Joshua’s death, Mrs. Sherret indicated to me that Joshua had been “doing his crying thing for hours ...Peter finally got him to sleep.” Because the baby “never seemed comfortable with cribs and bassinet” they put him in a playpen with his comforter. They had a “baby monitor” set low but still audible. She thinks it must have been about 1:00-2:00 a.m. when the baby finally settled and went to sleep. She recalls hearing him around 5:30 a.m. She says she “thought nothing of it ...just gurgling so I went back to sleep.” She now thinks this must have been the baby in distress. She says they awoke around 7:45 or 8:00 a.m. with the alarm and in surprise something to the effect that “Josh slept through the night!” She stated that when she went to wake him up he was “already stiff as a board ...wasn’t breathing.” She also said that she had “been trained in CPR ..but when it’s yours you flip ...don’t know what to do.” She says she started screaming and ran out of the apartment banging doors. She says the baby was taken away by ambulance and she was still “hoping something could be done” though she realized he “was probably gone.” Despite this, she told me that she now believes that more could have been done to save her baby - “I’m not saying they caused his death but, if they’d tried a little longer...”
She says she first thought Joshua must have died of SIDS as the coroner had mentioned this at the apartment. When she was herself charged with his death she “thought there was something going on but I wasn’t sure what.” Her reaction was “I don’t believe this, why are you doing this to me?” She told me that she believed it was because of something her husband said to the police - “they were brainwashing him for four hours.” She says she thinks he said something about her remark, “I don’t want to hurt him” but she says she cannot remember this. She insists that she never had any thoughts of intentionally harming her son.
Report of Dr. Bray, Appeal Book, vol. 1, p. 350
Report of Dr. Hucker, December 28, 1998, Appeal Book, Vol. 1, pp. 363-364
26. Bruce Hillyer describes in his affidavit how the plea bargaining developed into what can best be described as a “nolo contendere” hearing at her trial:
Prior to the commencement of trial, Crown counsel Sheila Walsh (now deceased) telephoned me and seemed uneasy about proceeding to trial on the murder charge. I told her that no plea would be forthcoming on that charge or on a charge of manslaughter. She asked me what charge the Applicant might be prepared to consider pleading guilty to. I told her I would get back to her and I scoured the Criminal Code looking for something that might work. The only thing close was Infanticide on the theory that the Applicant had been slow to respond to her child after she had noticed his distress (i.e. an act of omission). I then discussed this with Ms. Walsh. She indicated willingness to such a plea but only if the facts included an act of commission instead of an act of omission.
I discussed these ideas with the Applicant over the telephone in early December, 1998, a discussion that also included her father and her husband, Peter Robinson. The Applicant gave me instructions that she would agree to the Crown’s offer. However, she insisted that she could not, and would not, herself, acknowledge that she had done anything to cause Joshua’s death. On the basis of these instructions I negotiated what might be best described as a “nolo contendere” proceeding with the Crown. On December 17, 1998, Ms. Walsh wrote to me in the following terms:
This will confirm our conversation of yesterday’s date indicating our agreement to proceed with the above trial on January 4, 1999 by way of agreed statement of fact. I understand that your client will plead “not guilty” to the charge, but will not contest the facts read in and will offer no evidence, other than a psychiatric report, which you will disclose to me in advance. I will advise the Court that the Crown is seeking a conviction on the lesser offence of infanticide. We have no agreement as to sentence submissions.
On January 4, 1999, the plea bargain was consummated in the Superior Court in Belleville before Mr. Justice R.G. Byers.
Affidavit of B. Hillyer, November 9, 2009, Fresh Evidence Materials, Tab 2, paras 8-9
7. THE TRIAL AND SENTENCING:
27. On January 4, 1999, the Appellant was arraigned before Mr. Justice Byers in the Ontario Court (General Division) at Belleville, Ontario, on an indictment as follows:
Sherry Lee-Ann Sherret stands charged that she, on or about the 23rd day of January, 1996, at the City of Trenton in the East Region, unlawfully did commit infanticide on the person of Joshua Cameron Sherret-Robinson, contrary to Section 233 of the Criminal Code of Canada.
The Appellant elected trial without a jury and pleaded not guilty. The Crown read in a set of facts which the Crown and her counsel, Mr. Bruce Hillyer, had “drafted together”. These facts contained a claim that the Appellant had smothered Joshua:
With respect to the evening of January 22nd and into the morning of January 23, 1996, Ms. Sherret spent most of the day and evening with the children at her parents’ house. She asked her mother to keep the baby overnight, but her mother could not as she had to go to work. At about 9:30 p.m. she returned home with Mr. Robinson and the children.
Mr. Robinson testified at the preliminary hearing that he put the baby to bed the night of the baby’s death. He said that the baby had been throwing up a little more than usual that evening, but Mr. Robinson had no concerns for his health when he put him to bed. The baby was placed on his belly with his face turned to the side in a playpen in the living room, with an adult sleeping bag folded several times underneath him, and a comforter and a couple of blankets over him.
Ms. Sherret gave the baby his last bottle at about midnight and put him back down in the playpen. She returned to the bedroom and she and Mr. Robinson both went to sleep. Some time prior to 8:00 a.m. Sherry Sherret got up and smothered Joshua Sherret-Robinson causing his death.
Ms. Sherrett later gave conflicting accounts as to what happened after she retired for the night. She told some witnesses that she had heard the baby making gurgling noises around 5:00 or 5:30 a.m., but that she did not get up to check on him. She told other witnesses that she got up to check on him and he was fine.
Ms. Sherret and Mr. Robinson both awoke at about 8:00 a.m. on January 23, 1996. Ms. Sherret went to the baby first, called Mr. Robinson into the room, then left the apartment banging on doors and yelling that she needed to use a phone. Catherine Chandler, an upstairs neighbour, let her in. Ms. Sherret said the baby wasn’t breathing, and Ms. Chandler called the police. They both went down to Ms. Sherret’s apartment. Ms. Sherret was hysterical, screaming, “My baby’s dead” over and over. Ms. Chandler told her to hang on as an ambulance was on the way. Ms. Sherret said, “How can they help the baby when he’s been gone for three hours?” Another tenant, Kate Jordan, overheard this.
At the hospital, Ms. Sherret told two nurses and a doctor that she knew how the baby had died, as she had a dream that night that he had suffocated.
. . . . .
Dr. Charles Smith performed an autopsy on the baby at the Hospital for Sick Children. He determined the cause of death to be asphyxia. He ruled out mould or disease as a cause of death. Pinpoint hemorrhages in the tissue of the eyelids, sometimes present in non-accidental asphyxia, were not found in this case. Dr. Smith was highly suspicious that the death was non-accidental, but there were no overt signs of violence upon which to make a conclusive finding.
A microscopic skull fracture was discovered months after the original post mortem. It was not initially visible to the pathologist. Dr. Smith testified at the preliminary hearing that this skull fracture could have been caused on either an accidental or non-accidental basis and was not the cause of death.
A bucket handle fracture was detected on the baby’s left ankle. This could have been caused on either an accidental or non-accidental basis. This type of fracture, along with the age of the infant, caused Dr. Paul Babyn, radiologist at the Toronto Hospital for Sick Children, to suspect child abuse. (emphasis added)
Summary of Facts, Transcript of Trial Proceedings, January 4, 1999, 110/5 to 112/30
28. After the Crown had read the allegations to the Court, the Appellant’s counsel advised the Court:
I am instructed, Your Honour, not to offer or call any evidence in rebuttal of those facts.
The Court then found the Appellant guilty of Infanticide as charged. The outstanding indictment against her for Second Degree Murder was withdrawn.
Transcript of Trial Proceedings, January 4, 1999, 113/1-10, 116/5-15
29. A Pre-Sentence Report was prepared in anticipation of the Appellant’s sentencing. She had no prior criminal record. The probation and parole officer, Ms. Victoria DeGrace, wrote:
Ms. Sherret does not accept responsibility for Joshua’s death, and her sources of support including her immediate family members and her husband enable her to maintain her denial. The closest acknowledgment from Ms. Sherret, with respect to culpability, is a suggestion by her that she may have placed too many blankets around Joshua the night of his death. (emphasis added)
Dr. Karen Smith, a psychologist, provided a psychological assessment of the Appellant which was filed at her sentencing hearing. She wrote:
Ms. Sherret relayed her experience of the night that Joshua, aged four months, died. She said that she put him to bed after giving him a bottle at midnight. She notes that he couldn’t get comfortable in the playpen where he slept. She put in a comforter and a sleeping bag. Around 5:30 a.m., Ms. Sherret heard him gurgle on the baby monitor. She reports that she turned it off and then went to sleep. She notes that this was the first day that Joshua had been “quiet” out there. Ms. Sherret thinks that he might have smothered because there were too many blankets. She also said that there were mould problems in their apartment; and that Joshua had had a diphtheria/tetanus shot 14 days earlier. (emphasis added)
Pre-Sentence Report, Appeal Book, vol. 1, p. 345
Report of Dr. Karen Smith, April 6, 1999, Appeal Book, vol. 1, p. 369(c)
30. In sentencing submissions, the Crown sought a sentence of two years imprisonment, and the defence sought a non-custodial sentence. On June 2, 1999 Mr. Justice Byers sentenced the Appellant to imprisonment for one year followed by two years of probation. In his reasons for sentence, he said:
To this day I do not understand why she did it. There is no doubt that looking after Joshua was very stressful for her; and it would seem that there were warning signs that were there to be seen. But at the end of the day only she knows what she did, and why she did it. And she is not telling.
Instead she denies guilt and shows no remorse. Her support system in the community – her family, her friends – reinforce that position.
Joshua did not die because his mother was suffering from some sort of postpartum depression. His death, perhaps, is connected to the fact that Sherry suffers from what the doctors have called a mixed personality disorder. Or, perhaps not. No doubt, though, her attitude towards this tragedy is connected to that diagnosis.
My function is to sentence the offender for this offence. Rehabilitation has been the focus of my attention. The prognosis, it would seem, is hopeful but guarded. Everyone seems to agree that the chance of her doing such a thing again is minimal. I do not see her as a big risk to the community. And, there is some risk to her, I am told, if I send her to jail.
But I think that her chances to make a change in her life, to understand herself, and to accept her responsibility for what she has done, lie in a combination of forced treatment on the inside, and voluntary treatment, watched over by a probation officer, on the outside.
Finally, I would say this. Who speaks for Joshua? Is his life so unimportant that his mother, who killed him, without explanation, without apparent remorse, should go free without punishment? What signal does that send to this accused? To this community? Well I speak for him now. He was important. He was a human being. He was only four months old. And Madam, you killed him.
In my book, that means you go to jail.
The Appellant served her sentence, mostly at the Vanier Prison for Women, and thereafter completed her probationary period without incident.
Submissions on Sentence, Transcript of Trial Proceedings, February 8, 1999, 120/25-30, June 2, 1999, 229/30-230/5
Reasons for Sentence, Transcript of Trial Proceedings, June 2, 1999, 232/15-234/25
Affidavit of the Appellant, November 7, 2009, Fresh Evidence Materials, Tab 1, para. 21
Harold Levy...hlevy15@gmail.com;
