"54. Dr. Smith’s reputation is now in tatters. His opinions no longer command respect. 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. But in 1992, when the Appellant’s plea was entered, Mr. Gorrell (Dinesh Kumar's defence lawyer) knew none of this.
Goudge Report, Volume 2, pp. 188-189.
55. There can be no doubt that the Appellant was under a multitude of pressures when he entered his plea:
● He was facing a conviction for murder and a sentence of life imprisonment. Even a conviction on the lesser offence of manslaughter would likely have led to a lengthy term of imprisonment. The offer of a conviction for criminal negligence causing death and a joint submission for a sentence of 90 days intermittent must have overwhelmed him.
● He was in a new country, in a new culture and his English was poor. He must have felt very vulnerable in these circumstances.
● His wife and extended family were urging him to accept the plea bargain.
● Both his own counsel were urging him to accept the plea.
● He was told that he would likely avoid deportation back to India if he accepted the plea.
● He was told that he would be allowed to have Saurob back if he accepted the plea.
The Appellant always maintained that he did nothing to hurt his son, whom he dearly loved. But the pressures on him to plead guilty were overwhelming."
DINESH KUMAR'S FACTUM: ONTARIO COURT OF APPEAL;
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PUBLISHER'S NOTE: Dinesh Kumar was exonerated on January 20, 2011 - even though he had pleaded guilty in 1992 to criminal negligence causing his son Gaurov's death in order to avoid a murder conviction at the hands of the then revered Dr. Charles Randal Smith. The Crown joined with defence counsel in seeking the quashing of that conviction and a verdict of acquittal. This Blog ran a series of nine posts in May and June 2008 to highlight this tragic, disturbing case and see what could be learned from it. Justice was delayed so long for Mr. Kumar and his family. (Almost twenty years); They should have been treated with sympathy as mourning parents. Instead they were thrust into a hellish existence after Dr. Charles Smith became involved in their lives. Indeed, Justice Marc Rosenberg acknowledged the "terrible toll" the ordeal had exacted on Mr. Kumar and his family over almost twenty years - and said the Court understood why Mr. Kumar had felt compelled to plead guilty to a criminal offence he had not committed. The Court accepted the fresh evidence, quashed the conviction and entered an acquittal.
HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;
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PART 1 – STATEMENT OF THE CASE
1. Shortly after midnight on Friday, March 18, 1992, the Appellant’s five week old infant son, Gaurov, died in his father’s arms in their one bedroom apartment. On June 26, 1992, the Appellant was charged with second degree murder. On December 3, 1992, he appeared before His Honour Judge Ormston in the Provincial Court (Criminal Division). He pleaded guilty to criminal negligence causing death and was sentenced to 90 days imprisonment to be served intermittently. The charge of murder was withdrawn.
2. A series of events commencing in 2005 led to the Appellant seeking an extension of time pursuant to section 678(2) of the Criminal Code to file an appeal to set aside his guilty plea and conviction for criminal negligence causing death. On May 27, 2008, Rosenberg J.A. granted the extension of time and the Appellant filed a Notice of Appeal of his conviction. On this appeal, the Appellant is seeking to have his conviction quashed and a verdict of acquittal entered. The Respondent has advised that it, too, will urge this disposition on the Court.
PART II
STATEMENT OF THE FACTS
1. The Appellant’s History
3. The Appellant is now 44 years of age. He was born in the State of Punjab in India. After graduating from high school, he worked as a goldsmith with his brother in the Punjab. In 1989, he and his wife, Veena, became engaged.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, paras. 1 to 3
4. In early 1989, Veena was sponsored into Canada by her brother. Months later, she returned to India and married the Appellant. She then sponsored the Appellant to immigrate to Canada. Their first son, Saurob, was born in this period, and he is now 19 years of age.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para.
5. The Appellant immigrated to Canada in early 1991. He quickly found employment as a general labourer for Sandy Line Sticker Design in Markham where he worked for four years. It was in this period that Gaurov was born and died.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 5
2. Gaurov’s Birth
6. Gaurov, the couple’s second son, was born on February 11, 1992. On the evening of the birth, Veena had a seizure in the Centenary Hospital. She was diagnosed with a brain tumour and remained in hospital for one month. A tumour was removed which proved to be benign.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 6
7. In that month, family care was complicated. The Appellant had to keep working to keep his job, and now had two infants to look after. Gaurov spent some of the period in hospital with his mother. Her brother, Yograj Verma, and his wife helped. At one point, Veena was allowed to come home for two or three days. Then, on March 3, 1992, Veena was released from hospital. She stayed with her brother and his family for a few days and then came home to the Appellant. They were living at 40 Tuxedo Court, Apartment 1009, in Scarborough.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 7
Medical Records of Veena Kumar, Appeal Book, Tabs 15 and 16
3. The Events Surrounding Gaurov’s Death
8. On Thursday, March 17, 1992, the Appellant went to work at Sandy Line. He came home from work in the evening. His wife and their two sons were at home. The Appellant fed Gaurov at about 9:00 p.m., burped him and they played. At about 10:00 p.m., he put Gaurov in his crib. The family was living in a one bedroom apartment so they all slept in the same room.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 8
9. At around midnight, Gaurov woke up crying. The Appellant fed him milk from a bottle, burped him and placed him back in his crib where he fell asleep. At 12:30 a.m., Gaurov woke up with a scream. The Appellant picked him up, and realized he was not breathing and was turning blue. He told his wife something was wrong. The Appellant took Gaurov into the livingroom and gave him CPR including mouth to mouth. Gaurov was still not breathing. The Appellant called Veena’s brother to ask what to do (he did not know the 911 call system). His brother-in-law told him to call 911 which he did. Both he and his wife spoke to the emergency operator. The Appellant had now placed Gaurov on the sofa, and he and Veena were tending to him.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 9
10. Neither Veena nor the Appellant spoke English very well in 1992, their native language being Punjabi. Nevertheless, they managed to explain to the 911 operator that Gaurov was in trouble. The Appellant told the operator that Gaurov was
“like dead body, I don’t know what happened to him.”
He and Veena were both panicking.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 10
Extracts from Crown Brief: Transcript of 911 Call, Appeal Book, Tab 13, p. 55.
11. Mrs. Kumar’s brother and sister-in-law arrived, as did emergency personnel. The aunt was seen by emergency personnel to give Gaurov “three to four... good hard shakes ... but not ... a violent shake.” Emergency personnel then took over and administered first aid to Gaurov. He was taken to Scarborough Centenary Hospital and his breathing was restored. Milk in his mouth was suctioned out, and more milk was aspirated from his stomach. The Appellant explained to the doctor as best he could what had happened. Gaurov was diagnosed by Dr. Beaulieu as having suffered from
Cardiorespiratory arrest secondary to choking spell.
A secondary diagnosis was also provided:
Anemia of unknown etiology, possible central nervous system haemorrhage.
Gaurov was transferred that same morning to the Hospital for Sick Children and put on life-support. He was brain-dead. On Friday, March 20, 1992, the life support was removed and Gaurov died. His brother Saurob was immediately apprehended at the hospital by Children’s Aid.
Extracts from Crown Brief: Willsay of Appellant, Willsay of Veena Kumar, Willsay of Yogrig Verma, Willsay of Dr. Beaulieu, Interview of D. Kenrick, Interview of P. Rooney, Appeal Book, Tab 13, pp. 115-116.
Dr. Beaulieu’s Report, Mar. 18/92 Appeal Book, Tab 6, p. 18.
4. The Autopsy
12. The next day, March 21, 1992, Dr. Charles Smith conducted Gaurov’s autopsy at the Hospital for Sick Children. The police synopsis of the case summarized his findings as follows:
Dr. Smith found extensive hemorrhaging within the brain, behind both retinas and around the spinal cord. It was his opinion based on a great deal of expertise that these critical medical abnormalities had all the earmarks of injuries sustained after an episode of “Shaken Baby Syndrome”.
This condition occurs when an infant is picked up and shaken violently. Because of under-developed muscles in the neck and spinal areas, the infant’s head is whiplashed uncontrollably and the brain is literally “ping-ponged” within the skull. This trauma leads to hemorrhaging which, in turn, leads to brain swelling and dire consequences, i.e. death.
After the Post Mortem examination, Dr. Smith conducted further tests to clarify his initial diagnoses and at the same time rule out any other possible anatomical cause(s) for the injuries.
After conducting the tests, Dr. Smith solidified his previous opinion by declaring that the injuries were definitely not accidental in nature and because of the absence of external trauma, the injuries were consistent with his previous findings, to wit: “Shaken Baby Syndrome”.
He even took it one step further and explained that the damage present was probably the result of continuous shaking as opposed to a single violent shake.
Dr. Smith was unable to pinpoint the exact time the injuries occurred based on pathological examination but surmised that a baby with such critical injuries would be unable to feed normally as reported by the accused in all his statements to both medical and police personnel.
Therefore, it is his contention that the injuries must have been inflicted during the time frame between the last feeding at 12:30 a.m., and the time the 911 call was placed.
During this crucial period the accused was the only person to have exclusive control of the infant and therefore the only person with exclusive opportunity to cause the critical injuries to the child.
In his post-mortem report, Dr. Smith also noted an old chronic subdural hematoma in the occipital lobe (located in the back of the skull), the tentorium cerebelli (an extension of the dura on which the lobes rest) and the cervical cord, which he wrote “may have been as old as five weeks i.e. as a result of birth trauma.” Dr. Smith certified the cause of death as
“Head Injury”
Smith’s Post-Mortem report, Appeal Book, Tab 10, p. 28. ; Smith’s Final Autopsy Report, Appeal Book, Tab 11, p. 33.
Extracts from Crown Brief; Police Synopsis, Appeal Book, Tab 13, pp. 52-53.
13. Dr. Smith’s conclusions were endorsed by Dr. Dirk Huyer, a physician who was a member of the Suspected Child Abuse and Neglect Program (the SCAN unit) at the Hospital for Sick Children. Dr. Huyer attended the autopsy on his own initiative and reported as follows:
In summary, the clinical diagnosis in this child was most likely Shaken Baby Syndrome. Dr. McGreal, the staff neurologist involved in the child’s care agreed with this diagnosis. Preliminary autopsy results are consistent with this diagnosis. It is a very concerning injury and typically results from violent noticeable shaking of the child. No history of shaking was provided and shaking was denied on direct questioning. The lack of history to explain the clinical diagnosis is very concerning and coupled with the known mechanism is very suggestive of non-accidental injury.
Dr. Huyer had no training of any kind in pathology. Years later, his interview summary for the Goudge Inquiry included the following:
Dr. Huyer stated that he would no longer comment on the autopsy findings in a report without being provided a copy of the final autopsy report and unless he was asked to comment upon the findings documented.
Dr. Huyer stated that it was early in his career when he was involved with the Gaurov case. As he gained more experience, he refined the way that he presented opinions.
Dr. Huyer’s Report, Appeal Book, Tab 12, p. 35.
Dr. Huyer’s Interview Summary, Fresh Evidence Materials, Tab 9, p. 93.
5. The Appellant’s Interview with the Authorities
14. The Appellant spoke to hospital and police authorities. His interviews, some of which are no longer available, were summarized in the police synopsis of the case:
The accused was interviewed at length by hospital staff and later by members of 42 Division and the Homicide Squad.
He maintained throughout the investigation that he had last fed the baby at 12:30 A.M. and the baby had consumed the normal amount of formula of 2 ounces. After the final feeding the infant went to sleep.
At about 1:00 A.M., he heard the infant crying and went to investigate. He picked him up and he reports the child went limp and began to turn blue.
He made a half-hearted attempted at C.P.R. and then awoke his wife who was asleep in an adjoining room and told her what had happened.
The accused asked his wife to call her brother for advice. He called Mr. Verma himself while still holding the baby. The accused informed Mr. Verma that there was something wrong with the baby Gaurov, and that he was not breathing. Mr. Verma told him to put the phone down and call 9-1-1. He then called 9-1-1 dispatcher and asked for help.
This chain of events as told to the authorities has never altered.
Extracts from Crown Brief; Police Synopsis, Willsay of Appellant, Appeal Book, Tab 13, pp. 51-52.
Dr. McLachlan’s Social Work Report, Appeal Book, Tab 14.
15. One of the police interviews was recorded in the form of a willsay. The Appellant explained how he had put Gaurov to bed and fed him at 12:30 a.m. He continued:
About 1 a.m., the baby woke up crying. I picked him up right away. He went like this twice (Mr. Kumar gasped twice). Then the baby went limp. He started to turn blue. I opened up the sheets he was wrapped in and I patted him twice on the back then I turned him over and pressed on the baby’s chest with my right hand. I held his head and neck with the other hand. I pressed two or three times. I then did mouth to mouth air two times. The baby did not breathe. The mouth to mouth did not make any difference.
He called his brother and then he and his wife called 911.
Extracts from Crown Brief; Willsay of Appellant, Appeal Book, Tab 13, p. 95.
6. The Appellant’s Arrest and Guilty Plea
16. On June 26, 1992, the Appellant was charged with second degree murder. He was released on bail on July 10, 1992. He was represented by Mr. David Gorrell and Mr. Dhaman Kissoon.
17. On August 27, 1992, the Crown, Ms. Rita Koehl, wrote to Mr. Gorrell to confirm that, on June 10, 1992, she had offered to withdraw the second degree murder charge if there was a plea to Criminal Negligence Causing Death. Subsequently, on December 3, 1992, the Appellant entered a guilty plea before His Honour Judge Ormston of the Provincial Court (Criminal Division) on a new Information alleging Criminal Negligence Causing Death. Judge Ormston accepted a joint submission on sentence and sentenced the Appellant to 90 days imprisonment to be served intermittently, followed by two years probation. A transcript of the plea proceedings was sought by current counsel but is no longer available. Judge Ormston’s notes of the plea are also unavailable. However, a document has been found, in the handwriting of Ms. Koehl or the investigating officer, which is likely a record of Judge Ormston’s reasons for sentence. The document states:
J. Ormston
December 5, 1992
R v. Kumar
Sentence
In the circumstances of this tragic matter - in my opinion I agree this tragic death as a result of extreme stress-related incident
early p/g [plea of guilt]
truly remorseful and sorry
wishes to take appropriate steps asap
willing to take steps to correct his skills to ensure safety of his children
impressed by support shown
Take into account no record
Productive member of society since arrived here
12 days p/t [pretrial] custody – 2xs as hard as normal – credit for 24 days
My role to ensure accused punished, behaviour corrected
believe 90 days appropriate
int. [intermittent] appropriate
Documents regarding the Details of the Appellant’s Guilty Plea, Appeal Book, Tab 19, p. 200.
(a) The Appellant’s Trial Counsel’s Testimony at the Goudge Inquiry
18. The Appellant’s present counsel has spoken to Mr. Gorrell about his representation of the Appellant at his trial and, on February 8, 2008, Mr. Gorrell testified on a panel at the Goudge Inquiry. He recalled that, in preparation for trial, he had retained a hospital pathologist, Dr. Jay Naidoo of the Queensway General Hospital, to review Dr. Smith’s findings. Dr. Naidoo had no training at all in forensic pathology. He verbally advised Mr. Gorrell that he agreed completely with Dr. Smith’s conclusions of baby-shaking, and consequently he was not asked to provide a written report .
Correspondence between Gorrell and Naidoo, Fresh Evidence Materials, Tab 2
19. Mr. Gorrell recalls that, immediately following the Appellant’s release, the assigned Crown offered to consider a plea to criminal negligence causing death, with the possibility of no time in prison for the Appellant. Mr. Gorrell was taken by surprise, and given no explanation for the offer, which he says came out of the blue. After several meetings with Mr. Gorrell and several weeks considering his options, he recalls that the Appellant decided to accept the plea, for a sentence of 90 days to be served on weekends.
Gorrell Interview Summary, Fresh Evidence Materials, Tab 7
Extracts from Gorrell testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 8, pp. 62-73.
20. Mr. Gorrell advised that the Appellant had maintained his innocence from the outset of his case, until the day he attended Mr. Gorrell’s office to provide him with written instructions to the contrary, and to accept the Crown’s offer. During his testimony at the Inquiry, Mr. Gorrell described the Appellant’s situation as follows:
This was a man with no record – a new immigrant to this country, a wife with a brain tumor, a job. He was a contributing member of society, and all of a sudden an atomic bomb goes off in his life – murder 2. You have to tell him because they always ask, what’s the penalty, and you say, life with a minimum penalty of ten years – ten years…his whole life would be shattered.
....
Just to continue with this, what – I said, my heart went out to Gaurov’s father. I don’t know how I’d – I’d act in this situation if I had someone like Mr. Struthers (sic) saying well, you can get 90 days on weekends. After remission, that’s 60 days. That’s a maximum of 15 weekends. The Mimico Jail is jammed, so you’ll wind up doing only three or four or five. You can do that, or you can sit in the courtroom and be judged by everybody with a risk, with Charles Smith up there with a mantle of Sick Kids on his shoulder. You can go to jail. You can go to jail on manslaughter.
I really didn’t think a murder was in the cards, but you can go to jail on a manslaughter. What decision would I make? I’m pretty sure I’d make the decision he made even if I were not guilty. But as his lawyer, I’m the only person in the whole scenario that doesn’t judge him. The police judge him when they charge him. The Crown judges him when they prosecute him. The Judge judges him, the jury judges him, the press judges him.
When he says, I want to plead guilty, and I will sign on the dotted line, and I did it, I’m not going to tell him, no, sir, you’re going to face the trial and if you get eight years, that’s for the greater good of justice.
I took his instructions and I – I would not be at all surprised, with the stress that man was under at the time, if he was doing it out of expediency.
Mr. Gorrell continued:
… this was a plea which I, if I had been in his position, would have accepted, guilty or not.
Q. So you’d have been prepared to say you were guilty in order to accept the plea?
A. And I wouldn’t second-guess a person who did… my job as a lawyer was to make sure that he knew exactly what he was charged with; knew his alternatives; knew his choices; and then make sure he’s unequivocal in what he instructs me to do. But I’m not his judge.
Extracts from Gorrell testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 8, pp. 80-85.
21. Mr. Gorrell prepared a plea “Direction” for the Appellant. In the Direction, he set out a summary of the Crown’s case and continued:
I understand that if the matter went to trial, the Crown might be hard pressed to win a conviction on a charge of Second Degree murder, but would be far more likely to win a conviction on a charge of Manslaughter. The charge of Manslaughter carries no minimum punishment, but after a trial, I understand that if I were convicted of Manslaughter I would likely face a term of incarceration measured in years.
The Direction referred to Dr. Naidoo’s verbal opinion that “in fact the evidence that this baby died of shaken baby syndrome is overwhelming.” It outlined the Crown’s offer of a plea to Manslaughter accompanied by a joint submission that he should not receive a prison sentence. Paragraph 8 of the Direction stated:
I understand that for any plea bargain to be acceptable, I must be prepared to admit to you, my counsel, and to the court that through recklessness or otherwise, I caused the death of Gaurov Kumar. I understand that no one at this point is alleging that I intentionally set out to cause the death of the child, but only that I, by grievous error, did that.
An Addendum to the Direction added the following:
Addendum – I further understand that there may be immigration consequences, should I resolve the matter by way of plea bargain as aforesaid, and that you, my counsel, cannot offer any assurances that the Canadian Government will not take action to deport me as a result of this matter. However, I understand it is your opinion that I would have a good chance of successfully resisting deportation under the circumstances of this case.
There was no signed copy of the Direction in Mr. Gorrell’s file. Presumably the final version was amended in some regards insofar as it did not reflect the eventual plea of Criminal Negligence Causing Death negotiated between Crown and defence and entered by the Appellant.
Draft of Direction, Fresh Evidence Materials, Tab 4
22. Mr. Gorrell believed that one of the main reasons the Appellant pled guilty may have been to ensure that his family could remain together, and to avoid losing custody of his surviving son forever. In an exchange at the Inquiry, he remarked:
Q. So in essence, there was a further carrot there, dangled in front of – of Gaurov’s father –
A. There was a whole –
Q. -- to enter a plea?
A. -- there was a whole salad.
Q. Because he’d get his other child back.
A. That’s right…
Mr. Gorrell further noted that the Appellant ran the risk of deportation had he been convicted of second degree murder or manslaughter and he so advised the Appellant.
Extracts from Gorrell testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 8, p. 84.
23.
Mr. Gorrell made clear to the Appellant that Dr. Smith would be a formidable expert witness to confront. In his words:
[The Appellant] was caught up in something bigger than himself, and we know about it. That’s why we’re all here… it was the early days. He was one of the pioneers in this particular situation and he was facing the problem first – or among the first. And had he attempted to assert his innocence, plead not guilty, put the Crown to the proof of its case, it could have been disastrous for him…I would have had to find pathologists who disagree with Dr. Smith.
Extracts from Gorrell testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 8, p. 86.
24. Dhaman Kissoon, who was retained early on by the Appellant, and continued to represent him as junior counsel after asking David Gorrell to assist him on the case, recalls that in each conversation he had with the Appellant, including after he was presented with the proposed resolution, he categorically denied any involvement in his son’s death. Mr. Kissoon recalls that the Appellant was extremely concerned about the welfare of his wife, who was still quite ill, and for his surviving son, and who would care for them if he was sent to jail. He also recalls that Detective Prisor, the lead investigator on the case, had promised not to “red flag” his file if he pleaded guilty to Criminal Negligence Causing Death, a consideration which would greatly reduce the likelihood of the Appellant being deported.
(b) The Appellant’s Own Explanation for His Plea
25. The Appellant explains some of his feelings at the time of his baby’s death in his affidavit:
Gaurov’s death made me and my wife very sad. We were completely devastated and dejected. We always remember him. We talk about him. We have told his brother about him now that he is old enough to understand. I carry a photograph of him everywhere I go. We cry for him. I think of him every day. We make a donation to the Temple in his name every year. He would be 15 now, in Grade 11, and a brother to Saurob. After what happened to me, Veena and I decided we could not dare to have another baby in case it was taken away from us. So Saurob is an only child.
. . . . .
My wife and I were further upset by the police investigation. It made it hard to mourn Gaurov when the police seemed to think we might have been the cause of his death. I cooperated with the police because I wanted answers to why Gaurov had died. I completely denied any wrongdoing and told them exactly what happened that night. It was a great shock when I was arrested on June 26, 1992. I was confused, frightened, humiliated and ashamed before my family and my community.
He relates in his affidavit (confirmed by medical records) that, in 1991, his son Saurob had had a similar experience as an infant, fainting suddenly and turning blue. Three weeks after Saurob’s apprehension by the Children’s Aid Society, CAS authorities placed him in the care of Veena’s brother. In his affidavit, the Appellant states:
At first, neither Veena nor I could be alone with him. We had now lost both our boys.
The Appellant was in custody for two weeks until his release on bail. One of his release conditions was:
..not to have contact with his son born on October 9, 1990 except in the presence of a supervisor of the Children’s Aid Society.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, paras. 12 to 15
26. The Appellant explains the events that led up to his guilty plea:
I was in a new country with its own culture, and did not speak English very well. I was represented by David Gorrell and Dharman Kissoon. They presented me with the Crown’s position on my case; I was told the Crown’s final position was that if I pleaded guilty to Criminal Negligence Causing Death I would be sentenced to 90 days to be served on weekends, and a term of probation. I thought very hard about whether I should plead guilty. First, I knew that I had done nothing to cause Gaurov’s death. I loved him, cared for him and would never have done anything to hurt him. I did not, as was claimed, shake him at all. I was a gentle, careful, loving father to him at all times without exception.
Mr. Gorrell engaged urged him to accept the Crown’s offer. He told him that Dr. Smith was like “a God” in Court. He was told that he would be deported if convicted of murder or manslaughter but assured that the police would not report his case to immigration if he accepted the plea.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, paras. 16 and 17
27. The pressure proved to be too much for the Appellant:
My family, including my wife, wanted me to accept the Crown’s offer. My wife was still recovering from her surgery and could not cope alone with one infant and no income. We all wanted to put my charge behind us. We were all scared of the murder charge. My lawyer told me that we did not have any way to challenge the testimony of Dr. Smith. So I agreed, after much discussion with my family, to plead guilty as I did. It was the hardest decision I ever had to make. I do not want my guilty plea to ever be interpreted to mean that I did anything to harm Gaurov. I did not. My wife knows this too.
The Appellant points out that the plea “succeeded in one very important way”:
There was no condition in my probation order preventing me from being with Saurob. I was simply required to
“- take such counselling that are (sic) made available to you by either the Children’s Aid Society or some community organization,
- follow up on any plan relating to parenting skills and attend to such plan as recommended by your probation officer.”
As a way to relieve some of the pressure, my wife took Saurob to India for an extended stay. I visited them there for a month in April, 1993, and we all returned to Canada in May, 1993, where we lived together again as a family and have ever since.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, paras. 18 and 19
28. In a letter to the Appellant’s present counsel, dated January 29, 2008, the Children’s Aid Society provided some insight into Saurob’s state while he was in foster care:
The foster parent described Saurob as an easy child to care for. During his time in foster care, Saurob visited with his parents and other relatives. The foster parent reported that Saurob would whine most of the time during these visits. It was felt that 17 months old Saurob was experiencing trauma as he was missing his parents and grieving for them, and because he was suddenly placed in totally unfamiliar and culturally different surroundings where there was even a language difference. This situation appeared to be very stressful for Saurob. However, Saurob appeared to be a rather healthy child.
On April 3, 1992, Saurob was placed in the care and custody of relatives. By May, 1993, CAS was satisfied that Saurob could return to the custody of both parents:
Saurob and his primary caregiver returned from India in May 1993, and the parents subsequently reunited. There was no indication of volatility, or potential dangerous behaviour on the parents’ part toward Saurob. Saurob was seen as a secure and well-cared for child in his parents’ care. The Kumar family file was terminated on September 7, 1993.
Medical Records of Saurob Kumar, Appeal Book, Tab 17.
CAS Letter re Saurob Kumar dated Jan. 29/08, Appeal Book, Tab 18
29. After his plea, and having served his sentence, the Appellant resumed his life as best he could:
Life returned to normal but I never lost my sense of shame that I had had to admit to causing Gaurov’s death. For 13 years I assumed it was over. My wife and Saurob became Canadian citizens. I never applied for citizenship for fear that my conviction would come up and cause an immigration investigation of me.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 20
PART III
THE FRESH EVIDENCE AND THE LAW
A. THE FRESH EVIDENCE
1. Events Subsequent to the Plea, and the Holding of the Goudge Inquiry
30. More than thirteen years later, on November 1, 2005, the Chief Coroner announced that he was conducting a review of homicide and criminally suspicious cases, dating back to 1991, in which Dr. Charles Smith had performed an autopsy or provided an opinion. The Chief Coroner noted that “concerns [had been] raised about the conclusions reached in a number of cases where Dr. Smith was either the primary or a consultant pathologist.” He announced that 44 cases were to be reviewed (a number later revised to 45) by a team of “external” pathologists. He said:
The reviewers will be asked to provide their opinions on the following:
First, whether they agree that the important examinations were conducted;
Second, whether they agree with the facts reported as arising from these examinations; and
Finally, whether in their opinion, the conclusions reached with respect to the cause of death are supported by the materials available for review.
One of the cases to be reviewed was Gaurov’s case. Five pathologists were chosen to participate in the review:
• Dr. John Butt (Vancouver)
• Professor Christopher Milroy (Sheffield, England)
• Professor Helen Whitwell (Birmingham, England)
• Professor Jack Crane (Belfast, North Ireland)
• Professor Pekka Saukko (Helsinki, Finland)
Backgrounder “Review of Criminally Suspicious and Homicide Cases Where Dr. Charles Smith Conducted Autopsies or Provided Opinions”, November 1, 2005 Fresh Evidence Materials, Tab 5
31. Professor Helen Whitwell, from England, was the lead external reviewing forensic pathologist in Gaurov’s case. She has particular expertise in cases of infants who have died from head injuries, including the so-called Shaken Baby Syndrome, and has published widely in the field. In her Autopsy Report Review Form of December 5, 2006, a standardized document that the external reviewers were requested to provide, she concluded that the cause of death provided by Dr. Smith was, in 1992, in conformity with accepted opinions of “most pathologists and, certainly, clinicians” but would not be the current opinion of most pathologists from the United Kingdom in 2006. She noted as follows:
If I was reviewing this case as per Goldsmith Review (Attorney General U.K.), it is highly likely this case would have been referred to the CCRC [Criminal Cases Review Commission]/Court of Appeal.
Dr. Whitwell: Autopsy Report Review Form, Fresh Evidence Materials, Tab 10
32. On May 31, the Appellant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC). He was living at 99 Blackwell Avenue in Scarborough with his wife and their son Saurob. He immediately authorized AIDWYC to pursue his case. Since then, a number of documents have been retrieved on the case from the Appellant’s trial counsel, the Respondent, Scarborough Centenary Hospital, the Hospital for Sick Children, the Chief Coroner’s Office and other sources.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab1, para. 22
33. Professor Whitwell produced a more complete Medico-Legal Report Relating to the Death of Gaurov Kumar for the Goudge Inquiry. Her report included the following:
Opinion of Professor Whitwell
The male infant was 5 weeks old at the time of death. He had old subdural haematomas. It is now recognized that subdural bleeding may occur in a proportion of normal as well as assisted deliveries. In addition there were areas of fresh bleeding. This raises the issue of whether or not re-bleeding can occur in the background of chronic subdural haematomas. This is a contentious and debated issue. Furthermore it is unclear as to how much force – if any – may be necessary [for re-bleeding to occur]. It is unclear as to how much resuscitation was undertaken by the father. He denied shaking.
Issues relating to the case
1. The understanding of infant head injury has evolved over the last 10-15 years. This includes issues such as degree of force, low level falls and the etiology of subdural haemorrhages in the very young. At the time of this case – 1992 – the common prevailing view was similar to that of Dr. Smith, with clinicians in particular holding these opinions. The expressed opinions of Dr. Smith and the clinicians were conventional for the time. However, these opinions would be subject to challenge in view of the advances of medical knowledge.
This case illustrates that not only did Dr. Smith make a diagnosis of head injury with opinions on causation that would now be challenged, but the clinicians involved in the management also had similar views.
2. Dr. Smith’s descriptive report was detailed. No opinion as to the mechanism involved in the causation of the head injury or discussion relating to the findings was included in the report. I do note, however, that Dr. Smith in a meeting on June 26, 1992 (notes included in the police report) indicated that the injuries were definitely non-accidental in nature and the injuries were consistent with previous shaken baby syndrome. He also comments that the damage was probably the result of continuous shaking as opposed to a single violent shake.
These comments are without scientific basis. However, the clinicians at this time would probably have expressed similar views.
Dr. Whitwell: Medico Legal Report Form (Oct. 07), Fresh Evidence Materials, Tab 11
34. Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, reviewed all the cases reported on by the external reviewers including Gaurov’s case. He made the further observation in Gaurov’s case that the pre-requisites of a Shaken Baby Syndrome diagnosis (subdural haemorrhage, retinal haemorrhages and brain swelling) did not apparently exist in Gaurov’s case. When Gaurov was first examined at the Centenary Hospital, no retinal haemorrhages were seen. Dr. Pollanen outlined several general conclusions that should be drawn from the review of Dr. Smith’s work, and stated that, given advances in the scientific understanding of infant head injury:
… apropos of the results of the Smith and the Goldsmith reviews, there is a reasonable basis to believe that problems could exist with other fatal infant head injury cases including cases certified as Shaken Baby Syndrome.
Extracts from Dr. Pollanen’s testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 15, p. 182.
35. At autopsy, Gaurov was seen to have an old subdural haemorrhage, likely due to birth trauma which is not an uncommon event. The presence of this old subdural haemorrhage raised the possibility that a re-bleeding of it had occurred, leading to Gaurov’s death. Dr. Whitwell testified about this at the Goudge Inquiry:
A. Well, the issue raised in this case is the infant was five (5) weeks old. There's evidence of old subdural bleeding and the issue is could that have resulted from birth? And then the potentially subsequent rebleeding occurred either with or without trauma.
. . . . .
Q. All right. So the issue that's being raised, as I understand it, is whether or not -- and perhaps it's the wrong terminology to say spontaneously, but whether or not old bleeds in effect can re-bleed without the intervention of trauma?
A. That’s correct.
Q. How would they start if it wasn’t for an intervening event?
A. Well - -
Q. Just theoretically?
A. Because in older hematomas or older collections you’ve got tiny blood vessels which are quite thin walled.
. . . . .
Q. Sorry, I just - - I’m interested in the medicine, Dr. Whitwell. If an older child suffers a bleed like this, does it run the risk of a re-bleed within, say, four weeks? Injury, say, based on trauma, a blow?
A. Well - - in fact, in adults, chronic subdural - - from an active subdural - - we don’t know the answer in fairness. I have seen infants who’ve been in hospital following subdural hematomas and a degree - -
Q. Infants older than four weeks like?
A. Yes. And, I’m, with evidence of subdural hematomas and brain damage, and re-bleeding has occurred whilst in the hospital was spontaneous.
Q. Right. So it’s not something that is unique to newborns.
A. No. I think in this case, was the issue of the birth - - potential birth injury and then -
Q. Yeah, well that would cause the original bleed.
A, Yes, correct.
In her testimony, Dr. Whitwell also observed that Gaurov’s aunt’s actions when she shook Gaurov, which were observed by emergency personnel, could have led to the re-bleeding.
Extracts from Dr. Whitwell’s testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 12, pp. 108-113.
2. Expert Reports on Gaurov’s Case Post-Goudge
36. Since the Goudge Inquiry, the Appellant and Respondent have retained experts to review Gaurov’s case.
(a) The Respondent’s Experts
37. The Respondent retained Dr. Michael Pollanen, then the Chief Forensic Pathologist for Ontario, and further retained Dr. William Halliday, a pediatric neuropathologist at the Hospital for Sick Children in Toronto.
(i) Dr. Pollanen
38. In a lengthy report, Dr. Pollanen noted that Gaurov had no scalp injuries, no skull fracture, and no diffuse or traumatic axonal injury (forms of severe damage to nerve cells (axons) in the brain caused by force). He considered:
The pathologic findings in this case are minimal. The acute subdural hemorrhage is scant. The retinal hemorrhages are essentially similar to the fundoscopic findings – not numerous and largely in the posterior pole of the eye. Retinal hemorrhages involved mostly with superficial nerve fibre layer.
Dr. Pollanen entered into a review of the different and diverse views of the validity of Shaken Baby Syndrome. He presented the triad hypothesis favoured by some – that the combination of subdural hemorrhages, retinal hemorrhages and hypoxic-ischemic encephalopathy (dead nerve cells in the brain and edema (swelling) of the brain) suggested Shaken Baby Syndrome. He observed that in Gaurov’s case, retinal hemorrhages had not been observed when Gaurov’s eyes were first examined on arrival at the hospital:
There was an apparent lack of retinal hemorrhages on initial presentation to hospital. This has two possible explanations: the retinal hemorrhages were simply not detected, but were present; or the retinal hemorrhages developed later due to raised intracranial pressure from hypoxic-ischemic encephalopathy , rather than shaking. I favour the latter explanation in this case. Resuscitative shaking as a cause of the subdural hemorrhage and retinal hemorrhages in this case can probably be excluded, since the infant was ‘dead’ at the time of that shaking. The only caveat to that latter view is that if this shaking caused injury, then the bleeding may have subsequently developed by ‘re-perfusion’. This seems unlikely to me.
Report of Dr. Pollanen, May 13, 2009, Fresh Evidence Materials, Tab 19, at pp. 288, 294.
39. Dr. Pollanen asked himself whether Gaurov’s death could have been caused by the re-bleeding of his birth-related subdural hemorrhage. In this regard, he wrote:
The question is open and unresolved in Gaurov’s case. However, based on the present evidence, I am unable to conclude that Gaurov died of continuous violent shaking. Perhaps the most succinct general statement on this issue is a statement that appears in a letter to the editor regarding a biomechanical study: “...we cannot yet answer if shaking can cause intracranial injury in infants, and use of terminology that includes this mechanism should be avoided.”
Dr. Pollanen concluded as follows:
1. I am unable to establish that Gaurov Kumar was killed by shaking. There are medical findings that could be interpreted as evidence of shaking or head injury. However, I do not view the evidence as sufficiently determinative of that conclusion, given the current state of the medical and scientific literature.
2. The Crown needs to be aware of the limits of my opinion in this case: I do not consider the issues related to pediatric head injury as closed or frozen – many of the issues are open to further study. Thus, it is possible that my views on pediatric head injury and related areas, as described in this report, may further evolve as new literature is published. Today, Gaurov’s case can only be assessed on the basis of the past and current literature, but may well be assessed differently in the future, when clearer knowledge might be available.
Dr. Pollanen suggested that other experts should be consulted in the areas of neuropathology, child abuse pediatrics, neuroradiology, ophthalmology, biomechanics and, perhaps, other areas.
Report of Dr. Pollanen, May 13, 2009, Fresh Evidence Materials, Tab 19, at pp. 295-296.
(ii) Dr. Halliday
40. Dr. Halliday disagreed with Dr. Pollanen’s opinion that the retinal hemorrhages were likely not present on initial examination at the hospital. He believed that they were there but not seen by the examiner. Further, in his opinion, the (likely) birth-related old subdural hemorrhage “does not offer any particular insights” to the case.
Report of Dr. Halliday, Fresh Evidence Materials, Tab 20
41. Dr. Halliday is a proponent of Shaken Baby Syndrome, although he prefers not to use that phrase. He wrote:
Currently, as in 1992, the constellation of these findings would cause one to be very suspicious that the Kumar case represents a case of non-accidental head injury or abusive head trauma. Both are terms that tend to be used today in preference to “Shaken Baby Syndrome”.
. . . . .
What has changed in the past 17 years is that the finding of the “triad” is now considered to be suspicious but not pathognomonic of abusive head injury. I am going to review the triad (the above findings 1-3) and hopefully show that when all is said and done the Kumar case remains suspicious. As mentioned previously, there is a history of shaking after the infant had collapsed and this adds a complexity to the case. I would further add that the findings at autopsy reflect all the events prior to death.,.the event, the resuscitation, and all therapeutic events during the brief hospitalization.
Dr. Halliday focussed on the evidence that Gaurov was shaken by his aunt on her arrival at the home. He said:
While one might be tempted to discount this event, I do not believe that the witnessed shaking can be totally discounted and for me it adds a significant complexity to the case.
Dr. Halliday concluded that there were two potential causes of death: (1) Undetermined or (2) Craniocerebral trauma. He then said:
As suspicious as I feel about this case, given the objective findings and complexities of the Kumar case, I would lean to Cause of Death: Undetermined.
Report of Dr. Halliday, Fresh Evidence Materials, Tab 20, at pp. 305, 306, 308.
(b) The Appellant’s Experts
42. The Appellant retained three experts to review the case:
● Dr. Chris Van Ee, an expert in bio-mechanical engineering from Michigan. Dr. Van Ee reviewed the Appellant’s case and a second case, that of Richard Brant, in a single report.
● Dr. Jan Leestman, a neuropathologist from Chicago.
● Dr. Waney Squier, a forensic neuropathologist, consultant neuropathologist to the Oxford Radcliffe Hospitals and an Honourary Clinical lecturer at Oxford University.
(i) Dr. Van Ee
43. Dr. Van Ee’s expertise lies in the evaluation of traumatic head injury risk for different traumatic exposures to head injury. He explains in his report the application of biomechanical expertise to head injury issues:
Angular Acceleration and Head Injury
The science of biomechanics has been used extensively to understand the mechanisms of head injury and develop injury prevention strategies. As in the case of inanimate structures, traumatic head injury usually results from some part of the head being moved relative to another part. If the skull is compressed, stretched, or otherwise distorted, fracture and/or suture separation can occur. As the skull is compressed, stretched, and/or distorted, the underlying brain and vascular tissues also undergo movement and distortion. This will lead to injury of the tissues if the distortions are of sufficient magnitude. The relationships between movement or distortion of the head and associated head injuries is the focus of head injury biomechanics.
Angular acceleration or rotational acceleration is the term used to describe the rate of change of the rotational motion of an object. Linear acceleration, often referred to in g-force terms, refers to how quickly the speed of an object changes as it moves in a straight line, whereas angular acceleration refers to how quickly an object begins to rotate (positive angular acceleration) or ceases to rotate (angular deceleration). Holbourn (1943), a research physicist in the University Department of Surgery in Oxford, UK, is generally credited as being the first researcher to cite angular acceleration as a causative factor for intracranial injury. Holbourn hypothesized that if forces cause a sudden change in head rotation, the brain will lag behind the skull motion resulting in the stretching of the brain and surrounding tissues.
Dr. Van Ee’s expertise does not enable him to provide a cause of death for Gaurov, but he was able to provide an opinion on whether shaking could have caused Gaurov’s head injuries.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, Tab 18, at p. 245. (attachments filed separately)
44. In his report, Dr. Van Ee explained that severe rotational acceleration/deceleration forces can cause subdural bleeding. This had been demonstrated in bio-mechanical experiments on animals and cadavers, and in documented accidental injuries in humans:
The ability to quantify the angular acceleration of the head and thus measure the head traumatic exposure allows bio-mechanical engineers to make assessments of head injury risk. As the angular acceleration increases, the risk for injury increases.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, Tab 18, p. 246. (attachments filed separately)
45. Dr. Van Ee reported that science does not support Shaken Baby Syndrome theories for two reasons:
(a) shaking by a human cannot alone cause head injuries in a normal baby,
(b) vigorous shaking of a baby would generally result in trauma to the spine and neck areas, injuries that have not been historically observed in suspected shaken baby syndrome cases.
Dr. Van Ee wrote:
Abusive Shaking
Based on a review of the current scientific data, the hypothesis that shaking without impact is likely to result in injurious angular acceleration/deceleration cannot be scientifically supported. After conducting an empirical research study into these issues, Duhaime et al. wrote in 1987:
“It was concluded that severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.”
This opinion remains valid today. There are medical review articles and hypotheses that contradict it; however, no reliable scientific data has been documented that refutes Duhaime et al.’s findings. In fact, further research since 1987 has bolstered the science that shaking alone is unlikely to result in angular accelerations consistent with subdural hematoma and diffuse axonal injury (Prange et al. 2003). Instead, vigorous abusive shaking of a child without impact could result in an upper cervical spinal or cord injury and gripping style chest injuries. (original emphasis)
He noted that Gaurov did not “[present] with any notable chest or neck injuries” meaning that there was “no evidence that [his] injuries were caused by shaking”. Dr. Van Ee then concluded:
In light of all the above, in my opinion there is no evidence that Gaurov Kumar’s ... injuries were caused by shaking on single or multiple occasions. While bio-mechanics cannot rule out that [his] injuries were the result of an abusive scenario, there is no bio-mechanical evidence of this.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, Tab 18, pp. 247, 251. (attachments filed separately)
(ii) Dr. Leestma
46. Dr. Leestma, the author of the substantial textbook Forensic Neuropathology, was once a proponent of Shaken Baby Syndrome but later came to realize that it was a theory not supported by science. In the second edition of Forensic Neuropathology, he writes:
The problem of analysis of potential or suspected child abuse fatalities, especially in younger children, is a very difficult task, having to deal with a commonly embedded mindset that holds that certain findings rarely or never occur outside the environment of abuse and have considerable discriminatory potential to rule out accidental injuries, medical conditions, or combinations in favor of abuse. Virtually all the hallowed tenets of SBS have been challenged on the basis of scientific principles and have been found wanting or wrong. Does this criticism mean that there is no such thing as injury in connection with shaking (in the absence of impact)? Not at all. It means that given the best information that is currently available, it appears that shaking forces that a human can achieve, without an impact, do not apparently and predictably cause brain injuries but could cause cervical spinal injuries, which are uncommonly observed. It also means that it is not known if there are some infants who might suffer intracranial injuries from shaking because there is some underlying disease process or condition that lowers the injury threshold for them as compared with normal babies. This latter question has not been addressed in a systematic way and must remain open.
The job of the forensic pathologist of trying to figure out what happened to a dead child is not easy. There are many possibilities of etiology in what is nearly always a multifactorial problem. Given these complexities, like it or not, clear-cut interpretations in a situation where there are no forthcoming witnesses, no independent physical evidence, differences in professional opinions, and meager knowledge about many aspects of the problem are frequently not possible. When an interpretation is given, the answers must be scientifica1ly supportable, not to the standard of “more likely than not” but to a much higher standard, akin to that demanded in the best and most critical scientific disciplines. This standard is required because the results of an analysis may have profound consequences to an individual accused of harming the child, perhaps not very different from the basis for and consequences of the amputation of a limb or embarkation upon a highly risky medical treatment. All of these decisions must be based on the best evidence available and not upon dogma or prejudice.
Furthermore, it is becoming increasingly apparent that infants may present with what at first impression may appear to be traumatic injuries (subdural hematoma, cerebral edema, retinal hemorrhages, skeletal or skull fractures, coma, and apnea) but which may be caused by or contributed to by previously unsuspected inherited conditions (hemoglobinopathies, disorders of amino acid metabolism, coagulopathies, etc.), vitamin K deficiency, vitamin D deficiency and rickets, brittle bone diseases, unsuspected birth injuries, arachnoid cysts and fluid collections, and many other conditions that may be uncommon to rare. Rarity of a condition in a general population is not a disqualification for the etiological importance of that condition against the context of alleged or possible abuse, because by the selection process that operates, bringing an infant to a hospital emergency room or an autopsy service removes this child from population statistics. Thus, even uncommon and rare conditions become less so in the context of the evaluation of child abuse and should engender caution.
Leestma, Forensic Neuropathology, 2nd Ed. 2009, Ch. 7: “Child Abuse: Neuropathology Perspectives” at pp. 606-607 (filed as a separate document)
See Tuerkheimer: “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts” (2009) 87 Wash. Univ. L.R. 1
47. In his report on Gaurov’s case, Dr. Leestma presented similar views. He commented on a peer-reviewed study that proved there was no statistical correlation between shaking and retinal hemorrhage, and concluded:
In the final analysis the concept of SBS, however appealing in its simplicity, is unsupported by science and is not valid. Unless sufficient testable and repeatable data becomes available to overturn the body of scientific information and data now available, SBS must remain an unproven hypothesis with no scientific, medical or legal significance. I am providing you with Chapters 4 and 7 from the second edition of my book, Forensic Neuropathology, 2 edition which discusses and expands on all of these issues.
Dr. Leestma reviewed the circumstances of Gaurov’s death and concluded that he likely died as a result of his birth injury:
From examination of the above materials and records I conclude that this child likely died as a result of increased intracranial pressure caused by chronic subdural fluid collections with recent bleeding and not from abusive head trauma whether with or without shaking. Non-accidental injury cannot be excluded but there is no positive evidence for it.
. . . . .
Conclusions: In conclusion, Gaurov Kumar was an infant about 5 weeks old who had a cephalohematoma at birth. This lesion can be superficial but often can be accompanied by overriding of cranial bones which can injure the underlying dura and brain. This may manifest later as a chronic subdural hematoma and/or fluid collections. This child’s chronic subdural hematoma histologically dates back to birth with more recent hemorrhages most likely due to spontaneous bleeding as a part of the natural disease process of subdural hemorrhage. .... A defensible and logical conclusion is that the child died from natural disease processes and their complications.
Report of Dr. Leestman, May 18/10, Fresh Evidence Materials, Tab 17, pp. 220, 222 (attachments filed separately)
(iii) Dr. Squier
48. In her May 6, 2010 report, Dr. Squier noted that “Dr. Smith’s diagnosis seems to have been based on the triad of subdural hemorrhages, retinal hemorrhages and brain swelling”. Dr. Squier spent some time in her report reviewing the possible causes of subdural hemorrhages, retinal hemorrhages and brain swelling (the “triad”), both natural and non-accidental.
Report of Dr. Squier, May 6/10, Fresh Evidence Materials, Tab 16, p. 204 (attachments filed separately)
49. Dr. Squier considered the presence of Gaurov’s old subdural hemorrhages to be “very significant”. She noted that birth-related subdural bleeding is common – “up to 46% of asymptomatic neonates have small subdural bleeds”. She wrote:
Rebleeding is very commonly seen by microscopy in any baby with a chronic subdural membrane and results from the vulnerability of the thin walled vessels in the membrane to leaking and bleeding. This may occur without trauma and, indeed, is common in babies who are nursed on ventilators, indicating that it may result from fluctuations of intravascular pressure during intensive care.
In a footnote to her report, she suggested that she believed that, in Gaurov’s case, the “re-bleeding has not caused the collapse and hypoxia but has resulted from it.” She wrote:
Gaurov’s chronic subdural haemorrhage is very significant. Reports of choking prior to collapse in babies with chronic subdural haemorrhages are infrequently published, but I have personal experience of a number of cases; six of which I have presented as a peer-reviewed oral presentation to the British Paediatric Neurologists Association . All had chronic subdural haemorrhages. The fact that even a thin film subdural haemorrhage may cause neurological symptoms indicates that it causes cerebral irritation. One may suggest as a hypothesis that the association of chronic subdural bleeding and choking is due to impairment of a baby’s natural protective reflexes, predisposing the baby to succumb to choking.
Dr. Squier viewed Gaurov’s case as having many features of a SIDS case.
Report of Dr. Squier, May 6/10, Fresh Evidence Materials, Tab 16, pp. 209, 211 (attachments filed separately)
50. Dr. Squier summarized the case in the following way:
Opinion
• The evidence indicates that this baby developed a subdural haemorrhage at birth.
• Neuropathological observations are those of fresh bleeding into an older, healing subdural membrane consistent in appearance with having originated at birth.
• The history suggests that the baby choked and may have aspirated vomit or milk.
• Choking could have been initiated by a seizure or have been a spontaneous event in the baby compromised by the presence of a healing subdural membrane.
• I can see no features which indicate violence or inflicted injury.
Report of Dr. Squier, May 6/10, Fresh Evidence Materials, Tab 16, pp. 211-212 (attachments filed separately)
B. THE LAW
51. The Appellant submits that his affidavit and the testimony of his trial counsel at the Goudge Inquiry, should be admitted on appeal to explain why he entered his guilty plea. The Appellant further submits that the new expert evidence should be admitted as fresh evidence.
1. The Guilty Plea
52. The Appellant’s guilty plea, to be valid, must have been voluntary, unequivocal and informed. The Appellant’s plea met these pre-requisites – he entered a voluntary and unequivocal guilty plea, and understood the charge and the consequences of his plea.
53. At the time of the Appellant’s plea, Dr. Smith had a solid, if not outstanding, reputation in his field, among his peers, and in the criminal justice system. He was Canada’s most frequently consulted pediatric pathologist. Mr. Gorrell told the Applicant that he was like a God. Mr. Gorrell obtained a second opinion from a hospital pathologist that confirmed Dr. Smith’s opinions.
54. Dr. Smith’s reputation is now in tatters. His opinions no longer command respect. 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. But in 1992, when the Appellant’s plea was entered, Mr. Gorrell knew none of this.
Goudge Report, Volume 2, pp. 188-189.
55. There can be no doubt that the Appellant was under a multitude of pressures when he entered his plea:
● He was facing a conviction for murder and a sentence of life imprisonment. Even a conviction on the lesser offence of manslaughter would likely have led to a lengthy term of imprisonment. The offer of a conviction for criminal negligence causing death and a joint submission for a sentence of 90 days intermittent must have overwhelmed him.
● He was in a new country, in a new culture and his English was poor. He must have felt very vulnerable in these circumstances.
● His wife and extended family were urging him to accept the plea bargain.
● Both his own counsel were urging him to accept the plea.
● He was told that he would likely avoid deportation back to India if he accepted the plea.
● He was told that he would be allowed to have Saurob back if he accepted the plea.
The Appellant always maintained that he did nothing to hurt his son, whom he dearly loved. But the pressures on him to plead guilty were overwhelming. In Hanemaayer, Rosenberg J.A. spoke of the “terrible dilemma” faced by Mr. Hanemaayer when he pleaded guilty to a crime that he did not commit. In 1992, the Appellant faced an equally terrible dilemma. The circumstances of his plea establish that a miscarriage of justice occurred.
R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 (Ont. C.A.) para. 18
2. The Fresh Evidence
56. Dr. Smith attributed Gaurov’s death to shaking, indicative of Shaken Baby Syndrome. In his opinion, Gaurov was the victim of continuous shaking. This view was endorsed by Dr. Huyer, a clinical physician.
57. Dr. Smith and Dr. Huyer’s views were in vogue in 1992. As Dr. Leestma explains in his text, Shaken Baby Syndrome and the triad were believed in at that time even though it was not evidence-based science. Since then, experts in biomechanical engineering have challenged the “science” of Shaken Baby Syndrome and, using an evidence-based approach, demonstrated that shaking a baby to death is an unlikely occurrence, and that the symptoms of the triad need an alternative explanation. These experts have also shown that shaking a baby in the manner hypothesized by proponents of the Shaken Baby Syndrome would likely cause neck and spinal damage, and leave visible fingermarks where the assailant grasped the baby as he/she shook it.
58. The biomechanical evidence has left forensic pathologists, forensic neuro-pathologists, clinicians and opthamologists in a divided state. Some believe that Shaken Baby Syndrome is a credible theory, albeit they have re-labelled it. Some believe that Shaken Baby Syndrome is an unproven hypothesis that cannot be relied on. Some straddle the gap between these views. In the Goudge Report, the Commissioner wrote:
... one of the deepest controversies surrounding pediatric forensic pathology concerns shaken baby syndrome and, more generally, the cause and mechanism of head injuries. As pathology has evolved, controversies remain and indeed have grown. Forensic pathologists find themselves situated at different places along a spectrum of views on what can and cannot be said with confidence about these issues.
The Commissioner continued:
... the predominant view is no longer that the triad on its own is diagnostic of SBS. Instead, the issue is fraught with controversy. Some still say it can be. Others say it can never be. The conservative view is to say that one must look not just to the triad but to all the circumstances, acknowledging that a diagnosis of the cause of death may often be difficult, leaving the death as “undetermined.”
The Commissioner recommended that a review of, inter alia, shaken baby cases be conducted to isolate those that raised “significant concern that the conviction was potentially wrongful”.
Goudge Report, Vol. 3, pp. 527-533
59. The Commissioner made two observations of particular relevance to the Appellant’s case:
● First, he suggested that the review should not exclude cases in which a guilty plea had been entered:
A number of the cases examined at this Inquiry involved guilty pleas. Most of the convicted parties now challenge their convictions, arguing that their guilty pleas were induced by various factors, including the serious consequences of potentially being convicted of murder charges and the acknowledged difficulties in challenging Dr. Smith’s opinions. Without commenting on the merits of any individual claims, I am satisfied, based on the evidence at this Inquiry, that cases should not be excluded from the review only because an accused pleaded guilty.
● Second, he noted that in some cases additional evidence such as “a wide array of serious injuries” to the deceased could render any controversy about a particular case “irrelevant”. In the Appellant’s case, there was no evidence, other than the triad symptoms, that could be used to suggest that Gaurov’s death was non-accidental.
Goudge Report Vol. 3, pp. 532-533
60. The fresh evidence of Dr. Van Ee, Dr. Leestma, Dr. Squier and Dr. Pollanen undermines the Shaken Baby Syndrome conclusions of Dr. Smith and Dr. Huyer. These four experts, from their different disciplines, challenge the historical claim that the existence of the triad virtually amounted to proof that shaking was the cause of death. They – Dr. Pollanen in particular – also challenge whether the triad actually existed in Gaurov’s case.
61. The fresh evidence also takes matters a step further. Dr. Leestma suggests that a cause of death can be ascertained – he believes that “a defensible and logical conclusion” is that Gaurov died from natural causes which caused re-bleeding of his chronic subdural hemorrhage. Dr. Squier presents a similar opinion – she believes that Gaurov may have choked on his milk, either as a result of a seizure, or spontaneously, and “compromised by the presence of a healing subdural membrane”. Dr. Pollanen was less definitive, but in positing a cause of death referred as well to the old subdural hemorrhage:
Hypoxic encephalopathy in an infant with recent subdural and retinal hemorrhages and a birth-related head injury. (emphasis added)
Dr. Halliday would go no further than attributing the cause of death as “Undetermined” and Dr. Van Ee, of course, does not have the necessary expertise to suggest a cause of death. In light of the fresh evidence, it can be stated with confidence that a father (or other caregiver) would not be charged today if the circumstances surrounding Gaurov’s death were to recur, and the evidence now available was assembled.
Report of Dr. Pollanen, p. 35
Conclusion
62. In these circumstances, despite the Appellant’s plea of guilty, this Court can intervene and, in the interests of justice, admit the fresh evidence, set aside the guilty plea, and enter a verdict of acquittal, on the grounds that the fresh evidence establishes a miscarriage of justice occurred. The fresh evidence meets the Palmer tests and explains why the Appellant pleaded guilty to the crime of Criminal Negligence Causing Death. An acquittal is the appropriate remedy because the fresh evidence is such that this Court can be satisfied, to use Doherty J.A.’s words in Maciel, “that the appellant is innocent.” The evidence establishes that the Appellant was a good and loving father and has always steadfastly maintained that he did nothing to hurt his baby.
See R. v. Maciel (2007), 219 C.C.C. (3d) 516 (Ont. C.A.) at 533
R. v. Stolar (1985), 40 C.C.C. (3d) 1 (S.C.C.) at 10
63. The final submission is, perhaps, redundant but of great importance to the Appellant. Being charged with the murder of his son Gaurov, and pleading guilty to causing his death, have had a huge impact on his life. He and his wife decided not to have more children for fear of what might happen when the children were born. The Appellant has not dared apply for Canadian citizenship. When contacted in 2007 and told that Gaurov’s case might be re-opened, he responded by saying that he “thought of Gaurov every single day”. He watched all five days of Dr. Smith’s testimony at the Goudge Inquiry. As he puts it, his life “will be starting all over again” if he is cleared of killing his son. He expresses his thoughts in simple but powerful language:
I did nothing wrong to Gaurov. My wife and Saurob know this but some members of my religious community still avoid me. I go to my Temple and am sometimes made to feel ashamed because people point at me and talk about me behind my back as the person who killed his own baby. I say to myself I did nothing wrong but this only helps a little. I want my name to be cleared. I have been saying for a long time that, if my name is cleared, I will post an announcement of it on the notice board of my Temple.
The Appellant asks the Court to say whatever it considers appropriate to help him clear his name.
Affidavit of the Appellant, Nov. 22/10, Fresh Evidence Materials, Tab 1, para. 24
PART V
ORDER REQUESTED
64. It is respectfully submitted that the fresh evidence should be admitted, the guilty plea set aside and a verdict of acquittal entered.
65. The Appellant estimates that the time required for oral argument is 30 minutes.
ALL OF WHICH IS SUBMITTED this 26th day of November, 2010.
_________________________
JAMES LOCKYER
LOCKYER CAMPBELL POSNER
1515-180 Dundas Street W.
Toronto, Ontario
M5G 1Z8
Counsel for the Appellant
AUTHORITIES CITED
R. v. Maciel (2007), 219 C.C.C. (3d) 516 (Ont. C.A.) at 533
R. v. Stolar (1985), 40 C.C.C. (3d) 1 (S.C.C.) at 10
R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 (Ont. C.A.) para. 18
Tuerkheimer: “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts” (2009) 87 Wash. Univ. L.R. 1
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
