"The Appellant has maintained her innocence for almost 17 years, including more than a decade in the penitentiary. It is no coincidence that she has now, after so many years, received support from experts in forensic pathology and pediatric neurology that Kenneth died as a result of his epilepsy, and not at her hands. The Supreme Court of Canada has asked this Court to consider the fresh evidence and determine whether her conviction constitutes a miscarriage of justice. The fresh evidence provides a clear and concise answer to the question. The Appellant is a victim of a miscarriage of justice. Dr. Smith played a vital role in her trial and presented evidence that convinced the jury that Kenneth was a homicide victim, through smothering or strangulation. The fresh evidence provides a natural cause of death related to Kenneth’s epileptic condition that cannot be excluded as the cause of death It is in the interests of justice that her conviction for murder be quashed and a new trial ordered."
FROM TAMMY MARQUARDT'S FACTUM: THE ONTARIO COURT OF APPEAL;
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PUBLISHER'S NOTE: Like Bill Mullins-Johnson, Sherry Sherret, two women who cannot be identified by name and Dinesh Kumar - all victims of Dr. Charles Smith who have been acquitted by the province's highest court often years after their conviction - Tammy Marquardt will be asking the Ontario Court of Appeal to clear her name - today. (At least five other similar appeals are pending). In anticipation of today's hearing I have been running a retrospective of 14 posts relating to the Marquardt case. This is the last post in the retrospective.
HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG;
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PART 1 – STATEMENT OF THE CASE
1. On October 9, 1993, the Appellant (21) found her 2 ½ year old son Kenneth Wynne lying on the spare bed in her bedroom in obvious distress. As she tried to assist him, he lost all visible signs of life. The Appellant, who was alone in her apartment at the time, summoned emergency services. Kenneth was resuscitated at the hospital but died three days later after life support was removed. On November 23, 1993, the Appellant was charged with his second degree murder.
2. Dr. Charles Smith was the pathologist who conducted Kenneth’s autopsy. In his post-mortem report and at the Appellant’s trial, he claimed the evidence established that Kenneth’s death was caused by “asphyxia”, through smothering or strangulation. Dr. Smith’s testimony was central to the prosecution’s theory that the Appellant, an impecunious young mother with limited parenting and coping skills - and carrying on an unstable relationship with Kenneth’s step-father Rick Marquardt - had suffocated Kenneth in a moment of frustration. Dr. Smith discounted the defence position that Kenneth, who had been treated for a number of seizures during his life, may have died during an epileptic seizure.
3. On October 24, 1995, following a trial before Mr. Justice McIssac and a jury in Whitby, Ontario, the Appellant was convicted of second degree murder and sentenced to life imprisonment without parole eligibility for ten years. The Appellant’s appeal of her conviction was heard before Justices Finlayson, Rosenberg and Goudge on January 16, 1998 and dismissed in a unanimous judgment on January 22, 1998. No application for leave to appeal to the Supreme Court of Canada was brought at that time.
R. v. Marquardt (1998), 124 C.C.C. (3d) 375, Appeal Book, Tab 8, pp. 24-27
4. The Appellant, who testified in her own defence at her trial, always maintained her innocence of the crime. She has filed an affidavit on this appeal which sets out her personal history and the events of Kenneth’s death. In 2005, the Chief Coroner for Ontario initiated a review of cases of suspicious child deaths in which Dr. Smith had conducted the autopsy. One of them was Kenneth’s case. Dr. Pekka Saukko, a Professor of Forensic Medicine at the University of Turku, Finland, was designated by the Chief Coroner as the primary reviewer of Kenneth’s case. In his report to the Chief Coroner in October, 2007, Dr. Saukko concluded that Dr. Smith’s finding of asphyxia was “illogical and completely against scientific evidence-based reasoning.” In 2008, Dr. Simon Avis, the Chief Medical Examiner for the Province of Newfoundland, conducted a comprehensive review of the medical evidence and circumstances surrounding Kenneth’s death. In his report, Dr. Avis agreed that Dr. Smith wrongly attributed Kenneth’s death to homicidal asphyxia, and concluded that he may have died during an epileptic seizure or of other natural causes.
5. On February 10, 2009, the Appellant brought an application for leave to appeal the 1998 dismissal of her appeal by this Court to the Supreme Court of Canada, along with an application for an extension of time. On February 11, 2009, Deschamps J. granted an extension of time. On March 12, 2009, Feldman J.A. ordered the Appellant’s release pending the decision on her leave application. The Appellant was released from the Grandview Penitentiary in Kitchener, Ontario that day, and has remained on bail since then. She had spent more than 13 years in prison.
6. On April 30, 2009, the Supreme Court of Canada, Justices Lebel, Deschamps and Cromwell presiding, ordered the Appellant’s case:
remanded to the Court of Appeal for Ontario for consideration of fresh evidence and whether the applicant’s conviction constitutes a miscarriage of justice.
Since this Order was made, Rosenberg J.A. has case-managed the appeal with counsel, and further experts have been consulted by the Appellant and Respondent. The Appellant now submits on her appeal that her conviction should be quashed and a new trial ordered, a position for which it is expected the Respondent will concur.
PART II
STATEMENT OF THE FACTS
1. The Appellant’s and Kenneth’s History
7. The Appellant is now 38 years of age. She was born in Toronto. Her father, Donald Wynne, was a member of the Ojibway Cree First Nation; her mother was of European descent. She was raised by her mother. She was sexually abused in her teens by her mother’s boyfriend, and left home at 17 years of age. In the summer of 1990, she became pregnant with Kenneth by her then boyfriend Robert Nelson. She was 19 years of age when Kenneth was born on May 18, 1991. In March, 1993, the Appellant married Rick Marquardt. In September, 1993, the Appellant moved into an apartment at 17 Lloyd Street in Oshawa with him.
Affidavit of Appellant, paras. 5-12, 14-16; Evidence of the Appellant, Vol. VII, 1103/5-1107/5
8. Kenneth had a lot of health problems. He suffered from asthma and, in January of 1992, he contracted pneumonia. He was epileptic. His numerous seizures were documented through hospital records filed during the Appellant’s testimony. The Appellant, who is herself epileptic, described them as terrifying. They lasted varying lengths of time, one lasting as long as eight minutes. He would shake and thrash his legs and make gurgling sounds. She took him to the Hospital for Sick Children in Toronto several times because of these seizures. Twice he had to be taken by ambulance. He was placed on phenobarbital and then dilantin but the drugs did not stop the seizures. The last time she took Kenneth to the hospital for a seizure was in September, 1993 when she took him to Oshawa General Hospital. He was then transferred to the Sick Children’s Hospital in Toronto.
Evidence of the Appellant, Vol. VII, 1133/25-1149/5, 1253/15-1255/15
Appellant’s Medical Records, Appeal Book, Tab 23, pp. 116-136
Records of Kenneth’s Seizure History, Appeal Book, Tab 17, pp. 45-78
The Appellant’s Involvement with Social Workers Prior to Kenneth’s Death
9. The Appellant had several contacts with community social workers during her pregnancy and after Kenneth’s birth. In her affidavit, the Appellant states:
Caring for Kenneth exhausted me and I was afraid that I would accidentally hurt him if I fell asleep while feeding and burping him. I expressed this concern to some of the social workers who were helping me.
At trial, the Crown relied on the testimony of some of these workers to suggest that the Appellant, unable to cope as a young mother, was a threat to Kenneth’s safety.
Affidavit of Appellant, para. 13
10. Before and after Kenneth’s birth, the Appellant went to Rosalie Hall, a maternity home for pregnant teens, seeking supportive counseling. After Kenneth’s birth, her social worker, Maureen Edwards, conducted a home visit. The Appellant told her that she experienced occasional “black-outs”, that Kenneth was difficult to soothe and that sometimes, when she fed him and burped him, she imagined that she was putting her arms around his neck. She said she yelled at him on occasion. Ms. Edwards gave the Appellant advice on how to ease her frustration. Cathy Sorichetti, another social worker at Rosalie Hall, testified that the Appellant told her about a time when Kenneth was crying and she placed her hand over his mouth. Sorichetti, who did not believe Kenneth was in any immediate danger, told the Appellant that it might be a good idea if Kenneth went into care but the Appellant was resistant to this. The Appellant’s testimony was that she had been misinterpreted by the workers – she had only expressed her fears that she might unintentionally mishandle Kenneth arising from her exhaustion in caring for him.
Evidence of the Appellant, Vol. VII, 1107/5-1113/10, 1234/10-1243/15
Evidence of Edwards, Vol. IV, 662/10-668/20, 669/20, 670/15; Evidence of Sorichetti, Vol. IV, 672/15-677/20
11. On January 25, 1993, the Appellant attended the office of Frances Holmes, a Toronto Children’s Aid Society (C.A.S.) worker, requesting that Kenneth be placed for a time in a foster home. At the time, the Appellant was living in a basement apartment with Kenneth and two other adults. She told Holmes that her living conditions were cramped, she was under stress and was worried she might hurt Kenneth. She said that her husband was being physically abusive to her. Holmes attended the basement apartment the following day and the Appellant again requested that Kenneth be taken into care. The C.A.S. secured a three-month custody order during which Kenneth was placed into care. He was returned to his mother at the end of the period.
Evidence of Frances Holmes, Vol. IV, 700/20-712/20; Evidence of the Appellant, Vol. VII, 1110/20-30, 1243/15-1247/15
12. On July 5, 1993, the Appellant moved to the Oshawa Y.M.C.A. to get away from Rick Marquardt. A week later, she disclosed to a supervisor, Marlene Wikaruk, that she had squeezed Kenneth’s leg, causing him a bruise. Wikaruk did not ask to see the bruise but told the Appellant that she would have to report this, which the Appellant accepted without protest. Wikaruk was impressed that the Appellant had come to her unsolicited and saw it as a cry for help. The worker had no worries after spending time with the Appellant.
Evidence of Marlene Wikaruk, Vol. V, 755/25-761/20; Evidence of Silvana Maclellan, Vol. V, 766/30-773/25, 774/20-776/10; Evidence of the Appellant, Vol. VII, 1126/10-1128/5, 1247/15-1253/10
2. The Events of October 9, 1993
13. On September 9, 1993, Kenneth had broken a leg while playing on the back porch with Rick Marquardt. He was kept at the Oshawa General Hospital for a month. The Appellant visited him there every day. He was discharged on October 6, 1993. The Appellant brought him home to her Oshawa apartment.
Evidence of the Appellant, Vol. VII, 1130/15-1131/15
14. On Saturday, October 9, the Appellant got up around 7:30 a.m. with Kenneth. She gave him some Cheerios and they started watching cartoons. Sometime after 8:00 a.m., Rick received a call from his ex-girlfriend Jeannine. She was about to give birth and wanted him there with her. Rick did not have any money so the Appellant lent him her bank card and he went to the hospital. The Appellant remained home with Kenneth. In the afternoon, they both napped and the Appellant moved Kenneth to the spare bed in her bedroom.
Evidence of the Appellant, Vol. VII, 1119/15-1120/20, 1149/20-1151/10, 1232/25-1234/5
15. Around 4:00 p.m., the Appellant woke up and went to the bathroom. She heard Kenneth calling her. It was muffled but it sounded like “Mommy, Mommy”. She called back that she would be there soon and finished in the bathroom. When she went into the bedroom, Kenneth was rolled up in the bedding. His head was at the foot of the bed and all twisted up in the sheets down to his chest. He was tangled up and it was hard to get the sheets off him. The Appellant was panicking. Kenneth was saying “Mommy, Mommy” and she was saying “Mommy’s here, it’s ok, Mommy’s going to get you out.” Then he was just saying “Mom”; it was faint and at this point she realized that there was something seriously wrong. She finally untangled him from the bedding. In her affidavit, she describes the passage of time:
When the police later asked me how long this all took I said about 20 minutes; that is how long it seemed to me. For some reason, I noticed the clock in the bedroom said 4:33. I later came to know that the 911 call was made at 4:38 so my time estimate was off; I can only say it seemed like an eternity as I tried to extricate Kenneth from the sheets.
Kenneth was white and he did not seem to be breathing. She ran with him in her arms to the phone and called 911.
Evidence of the Appellant, Vol. VII, 1151/10-1178/5, 1275/10-1305/30
Transcript of 911 Call, Appeal Book, Tab 9, pp. 28-31
See photograph exhibits, Appeal Book, Tab 10, pp. 32-34
16. The Appellant tried to follow the 911 C.P.R. instructions but was unable to:
Q. Why not?
A. Because I could hardly breathe myself.
Q. What do you mean you could hardly breathe yourself?
A. I was crying a lot and really upset.
Emergency workers arrived at the apartment at 4:42 p.m. within five minutes of the call. The Appellant was visibly distraught. She directed them to Kenneth. He was lying motionless on a couch to which she had moved him. His face was a grey-ashen colour and he was not breathing. The Appellant told the workers that he had just come out of Oshawa General after breaking his leg, and that he had a history of epilepsy. Efforts at resuscitation at the apartment failed and he was transported immediately to Oshawa General Hospital.
Evidence of the Appellant, Vol. VII, 1176/15-30, 1178/5-1188/5, 1305/20-1311/15
Evidence of Andrew Benson, Vol. II, 318/5-337/5; Evidence of Tony Romano, Vol. II, 349/15-358/5
17. Minutes after his admission, an emergency physician saw Kenneth who was in a state of cardiac arrest. Within ten minutes, Kenneth’s heart beat was restored and he was placed on a ventilator. At 7:12 p.m., he was transferred to the Hospital for Sick Children in Toronto. There, Dr. Shemie, a pediatric intensive care specialist at the hospital, found Kenneth to be in a deep coma with minimal brain function. He diagnosed Kenneth with a severe brain injury caused by a lack of oxygen. When questioned by the Crown as to how Kenneth came to be in this condition, Dr. Shemie testified:
The history that we obtained from the mother who was there with Kenneth at home was not enough to explain the severity of this problem and not enough to explain why a child would stop breathing and subsequently his heart would have stopped…It was inadequate, in my mind, to explain why Kenneth was so sick and, therefore, at that point I requested that our S.C.A.N. [Suspected Child Abuse and Neglect] Unit get involved.
Dr. Shemie discussed donating Kenneth’s liver, kidneys and heart with the Appellant and she agreed to this. On Tuesday, October 12, Kenneth was declared brain dead and his life support systems were removed. Dr. Shemie was asked by the Crown to offer a cause of death:
He died because he suffered a lack of oxygen and a lack of blood flow to his brain. The reason that he had a lack of oxygen and lack of blood flow to his brain was because his - - he was unable to breathe for some reason. He was unable to get oxygen into his blood and therefore his heart stopped and therefore his brain stopped working and that’s why he died. My impression is that the reason that he died was because he couldn’t breathe and the reason he couldn’t breathe, I’m not sure what the answer to that is.
The Appellant had stayed at the two hospitals with Kenneth all the time except when required to attend at police headquarters for an interview.
Evidence of Dr. Rumball, Vol. II, 366/30-371/10; Evidence of Dr. Muhtra, Vol. II, 384/20-397/30
Evidence of Lisa Page, Vol. IV, 588/15-597/5; Evidence of Dr. Shemie, Vol. V, 803/20-826/10
Evidence of Rick Marquardt, Vol. V, 911/15; Evidence of the Appellant, Vol. VII, 1191/10-1192/30, 1193/1-10
3. The Evidence of Dr. Charles Smith
18. At the time of the Appellant’s trial, Dr. Charles Smith was the director of the Ontario Pediatric Forensic Pathology Unit at the Hospital for Sick Children. He described the Unit as the only one of its kind in the world, claimed that he probably did more pediatric forensic work than anyone else in Canada, and had performed more than 1,000 pediatric autopsies in his career. Dr. Smith conducted Kenneth’s autopsy. Prior to autopsy, Kenneth’s liver, kidneys and heart valves were, with the Coroner’s approval, harvested for organ donation purposes. As a consequence, they were never subjected to forensic analysis. Dr. Smith called it “a minor inconvenience” for his autopsy.
Evidence of Dr. Smith, Vol. VI, 1009/10 - 1015/10
Dr. Smith’s final autopsy report, Appeal Book, Tab 18, pp. 79-80
Dr. Smith’s report of post-mortem examination, Appeal Book, Tab 19, pp. 81-85
19. Dr. Smith testified that Kenneth appeared to be “a healthy and well-cared for little boy who showed no external abnormality apart from evidence of medical intervention.” He certified the cause of death to be “Asphyxia” which caused irreversible brain damage. He defined asphyxia as
... a condition affecting the organs of the body or the body wherein there is impaired delivery or utilization of oxygen. An injury occurs because either there is inadequate supply of oxygen or the oxygen which is present cannot be properly used.
As evidence of his thesis, Dr. Smith pointed to scattered petechial hemorrhages (tiny red spots) over the surfaces of Kenneth’s heart, lungs and thymus. Photographs of the petechial hemorrhages were shown to the jury. Dr. Smith gave an example of how these petechial hemorrhages could have occurred:
If you are trying to breathe and you can’t get air in, if you have swallowed a hotdog at a baseball game and it’s stuck in your airway so you have complete tracheal obstruction, your brain is going to cause the muscles of your chest cage to work very hard trying to suck air in to get oxygen. But if it can’t get in, the internal environment in your chest cage is going to have a negative pressure compared to the outside world. The blood vessels on the surfaces of the organs in your chest see that negative pressure and that’s the same as having a pressurized can of shaving cream on an airplane. The pressure inside the shaving cream is fine, but the pressure outside of it is so low that it goes beyond the mechanical integrity of the wall of the container.
Dr. Smith testified that these findings of petechial hemorrhages were indicative of asphyxia.
Evidence of Dr. Smith, Vol. VI, 1013/5-30, 1015/25-1018/20, 1047/10-25, 1077/15-25
20. Dr. Smith further described his examination of Kenneth’s neck. He noted no external injury, but detected microscopic hemorrhages in the small skeletal muscles in the lower part of the neck. These hemorrhages he considered to be “consistent” with a non-accidental injury to the neck (but acknowledged that the attempts at Kenneth’s resuscitation by the medics could have caused them).
Evidence of Dr. Smith, Vol. VI, 1021/15-1022/10, 1032/5-15, 1065/10-1066/15
21. Kenneth’s brain was extremely swollen. Dr. Smith explained that such swelling occurs in response to a lack of oxygen and was “part of [the] asphyxia” . Photographs of Kenneth’s skull after his scalp had been reflected, and of his brain, were shown to the jury. Dr. Smith testified that between two and five minutes of oxygen deprivation would cause irreversible injury to the brain. Dr. Smith told the jury:
So what I’m left with in Kenneth is this: He has evidence of asphyxia. I have no natural disease that explains the asphyxia. I have some microscopic evidence of hemorrhage in his neck that would be consistent with neck injury, but I can’t say whether that neck injury was accidental or non-accidental. It would appear to be not a severe or prolonged neck injury if it was real such that we see the petechial changes in or around his eyes or in the region of his face.
So, what I’m saying is that he died of asphyxia. The asphyxia could be environmental, could be an environmental lack of oxygen, could be something like a plastic bag or a gentle suffocation. It could be a neck compression, I can’t rule that out, though I don’t have incontrovertible evidence of that. I have no evidence that he died of things like hotdogs, but then I wasn’t there, so I can’t make that statement.
Evidence of Dr. Smith, Vol. VI, 1032/15-1028/15, 1032/5-20
22. Dr. Smith was asked how long it would take to cause a child’s heart to stop beating through suffocation. He postulated a time between ten and twenty minutes. He was asked:
Q. Are the findings that you made on Kenneth Wynne’s body, are they consistent with suffocation with a soft object?
A. Yes, they are.
Q. And are they also consistent with suffocation with a plastic bag or some such other object?
A. Yes, they are.
Q Is there anything else that your findings are consistent with?
A. It’s possible that someone held his nose and mouth closed and he was suffocated that way. You understand my uncertainty about the significance of the hemorrhage in his neck. Is it possible that there was a very broad ligature or very soft object that was placed around his neck that is associated with asphyxia? That is a possibility. I don’t think it’s as likely, but it’s a possibility.
In cross-examination, Dr. Smith further included a pillow as an object capable of causing a partial, and fatal, obstruction of airflow.
Evidence of Dr. Smith, 1041/20-1042/5, 1057/5-15
23. Dr. Smith testified that there was no pre-existing disease to account for Kenneth’s death. The Crown asked whether a seizure might account for it. Dr. Smith answered,
I can’t accept that explanation unless you have other evidence to support it. I don’t have evidence of that at all.
He acknowledged that:
. . . if someone who is a pediatric neurologist comes along and disagrees with me, I could be convinced by such a person whose knowledge of seizures in young people is obviously much greater than mine.
Dr. Smith did not detect any “structural or anatomic or architectural evidence” of a seizure disorder at autopsy. Dr. Smith recognized “the problem of sudden and unexpected death in epilepsy”, but maintained that, in such cases, unless the person drowned or inhaled their own vomit, “you don’t have evidence of asphyxia.” Dr. Smith was asked for his comment on the Appellant’s statements that Kenneth called out “Mommy, Mommy” before he went lifeless; he responded: “If that’s true then the seizure hypothesis is not at all a tenable explanation.” He then continued:
If a pediatric neurologist tells you something else, then please believe him or her.
When asked by the Crown if any natural disease could account for Kenneth’s death, he responded:
No, on. I rather wish I could have, but I couldn’t.
Evidence of Dr. Smith, Vol. VI, 1036/5-1040/15, 1043/25-30, 1068/5-15, 1078/30
4. History and Treatment of Kenneth’s Seizures
24. At trial, Kenneth’s history of seizures was, to a considerable extent, discussed, but apparently not fully comprehended. Dr. Caspin, Kenneth’s family doctor, only knew of a history of three seizures that Kenneth had in the first 20 months of his life, all related to when he was feverish and so of no great consequence. She knew Kenneth was on anti-convulsion medication but advised that the Sick Children’s Hospital “was following the child’s seizure disorder not myself”.
Evidence of Dr. Caspin, Vol. V, 745/10-748/25, 754/20-755/10
25. Dr. Miroslav Ort, a pediatric clinician in private practice, treated Kenneth for his seizures. On Kenneth’s first appointment on July 6, 1993, the Appellant reported that he had suffered seven seizures of which two were accompanied by fever. She described him as going unconscious, and becoming stiff with jerky movements of his extremities – labelled by Dr. Ort as seizures that were “generalized in type”. Dr. Ort was concerned by the history and ordered a brain scan. Kenneth suffered another seizure on the same night as his first visit to Dr. Ort and was taken by his mother to the Oshawa General Hospital. The Appellant advised Dr. Ort when she saw him three weeks later that she thought Kenneth had a fever that night at the hospital, but the chart detailing Kenneth’s admission contained no reference to fever.
Evidence of Dr. Ort, Vol. V, 780/20-793/15
26. Starting in April, 1993, Kenneth was on phenobarbital as a result of a previous intervention at the Hospital for Sick Children but Dr. Ort changed his medication because of the phenobarbital’s side effects. He prescribed dilantin as an anti-seizure drug – “one of the basic medications for epilepsy” – and Kenneth took this drug until his death. However, it was noted that, when he was brought by emergency personnel to the hospital on the day he became lifeless, the amount of dilantin in his body was below a therapeutic level. In this regard Dr. Shemie, a pediatrician at the Hospital for Sick Children, testified
...there is no question that children who have a history of seizures when…the levels of the drug are low in the blood, as Kenneth had, that they could have a recurrence of that seizure.
Evidence of Dr. Ort, Vol. V, 786/20-30, 794/20-797/5; Evidence of Dr. Shemie, Vol. V, 834/5-15
Evidence of Dr. Logan, Vol. VI, 998/15; Evidence of Dr. Muhra, Vol. II, 394/5-30
27. Dr. Shemie testified erroneously that “the majority of [Kenneth’s] seizures were associated with fever” and that “six out of the seven seizures in the past were associated with a fever”. Dr. William Logan, who had a specialty in pediatric neurology and was chief neurologist at the Hospital for Sick Children for 16 years, treated Kenneth following his admission to the Hospital on October 9, 1993. He explained that for young children a seizure accompanied by fever (a febrile seizure) is a common, “fairly mild condition.” Epileptic seizures, however, resulting from a brain abnormality, can have very serious consequences up to and including death. Like Dr. Shemie, Dr. Logan was also acting under the belief that all but one of Kenneth’s seizures had been associated with a fever. He testified:
The information was that he had had a previous history of having seizures, that most of these were seizure associated with fever or caused by fever. One of them - - [one] seizure was not associated with fever. And that his development and health otherwise was fine except for asthma and that the actual event that happened was unusual, the actual event that was reported as preceding his loss of consciousness was unusual in that he was presumably wrapped in a sheet and it was difficult to extricate him from the sheet and that he may or may not have been having a seizure at that time.
Dr. Muhra of the Oshawa General Hospital spoke of Kenneth having “a history of febrile convulsions”.
Evidence of Dr. Muhra, Vol. II, 415/15-20; Evidence of Dr. Shemie, Vol. V, 819/10, 831/15
Evidence of Dr. Logan, Vol. VI, 974/25 -991/15
28. Dr. Logan’s testimony on whether Kenneth’s brain injury may have resulted from a seizure prior to his admission to hospital on October 9, 1993 was ambiguous. He referred to Kenneth’s extrication from the sheet and his loss of consciousness, and noted “that he may or may not have been having a seizure at that time.” Dr. Logan testified: “That event of not breathing and having to be resuscitated was something which I think could explain his present condition, but I couldn’t explain how he got to that event from that history. It didn’t quite explain it totally in my mind and I thought that was an unusual preceding event for his comatose state.” Dr. Logan acknowledged that there are cases of sudden death in epilepsy. He testified that “we don’t quite understand” such cases, which are infrequent. Crown counsel asked Dr. Logan in re-examination whether sudden death in epilepsy was applicable in Kenneth’s case. Dr. Logan answered “no” but was not asked to expand upon his answer. Dr. Logan simply ascribed the cause of Kenneth’s death to “cardiorespiratory arrest”.
Evidence of Dr. Logan, Vol. VI, 974/25-991/15, 1006/15
29. Dr. Logan was asked whether a person could speak during an epileptic seizure:
A. They might be having a mild seizure. There are some that involve just part of the brain and might not have this motor activity and they would be speaking, but generally they wouldn’t be speaking, making sense, but those aren’t serious kinds of seizures, those kinds.
Q. Would that involve a loss of consciousness?
A. Not while they are speaking. It could lead to that later, but at that time they wouldn’t be able to speak if they were unconscious and it wouldn’t be something that would have a lot of motor activity with it generally.
Once unconscious, a person suffering a seizure might still make sounds.
Evidence of Dr. Logan, Vol. VI, 990/15, 1007/20
5. The Appellant’s Statements to All Around Her
30. The Appellant gave consistent explanations of the events leading to Kenneth’s death. The jury heard in the evidence what she told the 911 operator, ambulance personnel, the police officers who interviewed her at the hospital, and the doctors and nurses at the Oshawa General Hospital and the Hospital for Sick Children. In addition, she gave a videotaped statement at the Oshawa police station on the day Kenneth was taken to hospital, and she testified as the only defence witness at her trial. Again and again, she repeated how she had found Kenneth struggling in his bedclothes and her attempts to extricate him. She variously described this as going on for ten, fifteen and twenty minutes. Cst. Terry thought she was guessing how long it took. The Appellant, who had taken C.P.R. training a few years earlier, received instructions from the 911 operator on how to resuscitate Kenneth but she was too terrified and overwhelmed to follow them. She continued to blame herself for not saving him. As she states in her affidavit:
I felt responsible for his death. I told myself if I had not gone to sleep, if I had slept in the same room with him, if I had not gone to the bathroom, if I had got to the bedroom sooner, if I had got the sheets off him sooner, if I could only have remembered how to do CPR properly, he would not have died.
Affidavit of the Appellant, para. 23; Evidence of Andrew Benson (emergency personnel), Vol. II, 334/5-15;
Evidence of Dr. Muhra (Oshawa General), Vol. II, 395/15-30; Evidence of P.C. Terry (Oshawa General), Vol. III, 446/15-451/15, 463/30-464/20; Evidence of P.C. McWhirter (Oshawa General), Vol. III, 474; Evidence of Sgt. Naccarato, Vol. III, 541/20 - 542/25; Evidence of Lisa Page (nurse at HSC), Vol. IV, 594/5-15; Evidence of Dr. Huyer (HSC), Vol. IV, 621/5-642/20; Evidence of Det. Carroll, Vol. VI, 1086/25-1098/25
The Appellant’s Demeanour at Hospital and the Funeral
31. A substantial part of the evidence at trial was invested in “demeanour” evidence, the trial having taken place before the release of the Morin Inquiry Report and before this Court’s decision in Levert (2001), 159 C.C.C. (3d) 71 (Ont.C.A.). The Appellant’s reaction to her son’s death was described in dramatically different ways. She was “distraught” and “quite genuinely emotional” according to one of the paramedics at her apartment, and as “upset obviously” by Dr. Muhra at the Oshawa General Hospital. P.C. Terry said she was hysterical and hyperventilating at the Oshawa General Hospital, and P.C. Kluem described her as emotionally upset – “she’s a very timid person in my experience with her”. Dr. Shemie found her to be “appropriately concerned and distraught” at the Hospital for Sick Children.
Evidence of Romano, Vol. II, 356/5-15; Evidence of Dr. Muhra, Vol. II, 412/10-15
Evidence of P.C. Terry, Vol. III, 459/25; Evidence of P.C. Kluem, Vol. III, 508/15-510/30
Evidence of Dr. Shemie, Vol. V, 818/5
32. Others, especially nurses, provided an opposite perspective. Nurse Harding found the Appellant to be “very calm, nonchalant” at the Oshawa General Hospital; Nurse Haley testified that she did not seem “overly upset” and “she just seemed to be saying the words, but her body language didn’t match it” (in her hospital notes, Haley had described the Appellant as “very emotional” with no qualifications). Sgt. Naccarato, who interviewed her at the hospital, said she “wasn’t too upset”. Nurse Page said she was “happy” at Kenneth’s bedside at the Hospital for Sick Children. Dr. Huyer testified that she laughed at an inappropriate, macabre comment that he made at Kenneth’s bedside. Detective Carroll arrested the Appellant for murder on November 23, 1993. He testified:
I explained to her that the medical reports that surrounded Kenneth’s death had indicated that he didn’t die accidentally, in my view, because of being wrapped up in the sheet as she had alleged had happened. I advised her that I thought he died because she had lost control. I suggested that he wouldn’t sleep. She was also tired, trying to sleep and he wouldn’t settle. She did something to try and keep him quiet, things got out of hand, Kenneth ended up dying.
He described the Appellant’s reaction to these accusations:
She just gave me a glaring stare and that was basically her demeanour for the full time that I was with her.
Evidence of Harding, Vol. II, 429/10-15; Evidence of Haley, Vol. III, 496/15-25, 501/25-30
Evidence of Naccarato, Vol. III, 544, 567/5-25; Evidence of Page, Vol. IV, 594/5-20
Evidence of Dr. Huyer, Vol. IV, 639/25-30; Evidence of Dr. Carroll, Vol. VI, 1087/5-15
33. The Crown also alleged that the Appellant’s demeanour at Kenneth’s funeral was inappropriate. Her estranged sister said that the Appellant only cried during the service and otherwise treated the funeral as a party. Stewart Powell, a friend of Rick Marquardt, said that she was joking around at the funeral. The Appellant described herself as being “numb” at the funeral.
Evidence of Wynne, Vol. V, 735/25-30; Evidence of Powell, Vol. V, 861/20-30;
Evidence of the Appellant, Vol. VII, 1193/10-1197/10
34. The trial judge expressed concerns to counsel about the demeanour evidence. In the context of Carroll’s testimony, he said to counsel:
The demeanour has come up a number of times in this trial and I’ve indicated my personal view of the matter already. Demeanour at the time of arrest or subsequent to arrest is very dangerous territory, in my experience. Again, looking at the probative value of the evidence when compared to its potential for prejudice strikes me that it’s not very helpful at all and could lead to some considerable difficulties. That’s my impression and I invite you to make any comments you wish to make. A person could be 150 percent innocent and still react in an identical fashion to being arrested, righteous indignation.
Later, in his Charge, the trial judge told the jury:
As well, do not place any weight on the evidence that was led about the apparent lack of appropriate emotional reaction to the death of Kenneth Wynne. That is really of no assistance to the resolution of the issues in this trial. For example, the Irish have a tradition of the wake where there is an all-night party and copious amounts of alcohol being consumed. I am advised that that tradition continues today in the Ottawa Valley. Does that mean that the family and friends do not truly grieve the loss of a loved one? I think not.
Trial Judge’s Comments, Vol. V, 1098/10-1100/10; Charge to Jury, 26/1-15
The Night of October 21, 1993
35. On October 21, 1993, some two weeks after Kenneth’s death, the Appellant was drinking in a bar with Rick Marquardt, Stewart Powell and Stacey Craig. She became intoxicated to the point that she vomited. During the evening, she screamed several times that she had forgotten how to do C.P.R. and had killed Kenneth. She wanted to go to the cemetery so the four of them drove there. Once there, the Appellant kept shouting that she had killed Kenneth because she had forgotten how to perform C.P.R. On several occasions, she had to be prevented from running onto the road into traffic. The Appellant herself testified that she screamed, “It’s all my fault. I killed Kenneth. I forgot how to do C.P.R. It’s all my fault.” At one point, she struggled with Powell; he punched her and she fell striking her head on the concrete road. She was taken to the Scarborough General Hospital and an attempt was made to detain her under Mental Health Act provisions. However, Rick spirited her out of the hospital and took her home. Later, police officers attended her apartment and she acted hysterically in their presence.
Evidence of Stewart Powell, Vol. V, 857/25-876/20, 891/20-898/30; Evidence of Rick Marquardt, Vol. V, 912/10-921/5
Evidence of Stacey Craig, Vol. V, 944/15-957/5; Evidence of the Appellant, Vol. VII, 1197/10-1205/25, 1312/30-1315/15
6. The Theory of the Crown at Trial, and the Defence Position
36. In her closing address, the Crown called on the jury to conclude the Appellant had suffocated Kenneth. She said:
Her worries and frustrations, her insecurities, whatever her feelings may have been, I submit to you, came to a head at that point in the afternoon. She went into Kenneth’s room and her feelings became translated into action and Kenneth Wynne died at her hand…
The Crown characterized the “seizure hypothesis” as “a red herring” and summed up Dr. Smith’s evidence on this point:
Dr. Smith went on in his evidence to say that he could not accept that a seizure caused Kenneth’s death and that if there had been no airway obstruction, that his death from seizure was even less likely. So without some kind of airway obstruction as Dr. Logan and Dr. Shemie referred to in combination with the seizure, it just was not tenable as far as he was concerned.
I think that all the doctors have agreed that for there to be any air of reality to this theory that a seizure caused or even contributed to Kenneth’s death, there has to be something more than that.
In this case, obviously the reference to something more is a reference to the sheet, but again all of these doctors, they know all of this. They know all these possibilities. As Dr. Smith said, he wished he could have come to some other conclusion, but none of them did. None of them thought Kenneth was having a seizure, although I have to be fair and say that some allowed that, in some circumstances, it must be possible, but really I think their opinion is it’s just not at play here and especially not while Kenneth is crying out, speaking in any sense. You don’t do that when you have a seizure. I think that’s a fair summary of the medical evidence on that point. You just don’t do that. If the seizure is so fleeting that you are then able to recover and start speaking again, it is not the kind of seizure that might even come close to causing a concern in this case.
Now, one of the other things that was put to Dr. Smith is that his findings about the petechiae were perhaps not entirely conclusive and defence raised this in closing, and I feel it necessary to point out again all of this was put in a lot of detail to Dr. Smith throughout his evidence, not just the petechiae, but all the other points and he indicated that he was still confident about his ultimate conclusion. He made the point that some pathologists that deal with adult pathology cases all the time may not be familiar with the child patterns of petechiae and that he remained confident about his own conclusions in this matter and not just conclusions based on this point or that point, but on the whole picture. What he found at autopsy, what he knew about the history of the events leading to Kenneth’s death and what he understood about Kenneth’s care. He has come to a conclusion with all of this in mind and his conclusions, as with all the other doctors, I would submit to you is worth very very serious consideration. In fact, it would be my submission to you that there is no evidence before you to contradict any of the opinions of the doctors.
So ultimately I would be saying to you that this whole suggestion that seizures played a part in Kenneth’s death is a complete red herring. It raises no reasonable doubt about what happened. It just does not figure into the events of October 9th.
Crown counsel urged the jury to conclude that the Appellant suffocated Kenneth to death.
Crown Closing, 197/25-198/5, 210/20-212/30, 251/10-20
37. The defence tendered no medical evidence at the Appellant’s trial. In his closing address to the jury, defence counsel submitted that Kenneth’s death may indeed have been caused by a seizure. He reassured the jury that this submission was not “a cheap shot” at Dr. Smith:
The interesting thing is if you look at the situation here if it was death by asphyxia without a seizure, which is really what the report, the autopsy report might be suggesting to be fair, that is the likely cause as Dr. Smith I think has told us, but is the alternative that we are suggesting as the defence was it ever considered by the doctors is what I’m asking you. It’s not a cheap shot. I hope you don’t find my saying that is a cheap shot that the doctors were intent on looking at one thing. They knew something about the history. They perhaps knew that there was some suspicious circumstances around this death. I’m not suggesting for a moment that Dr. Smith and Dr. Logan, most importantly Dr. Smith, wasn’t doing his job the way he would do on each and every occasion. Very experienced and very very eminent medical practitioner.
I’m just asking was the alternative that we suggest ever considered by the doctors? No one looked carefully at his history not because they were being negligent, not because they were being incompetent, because it was a stone, ladies and gentlemen, that wasn’t turned over is what I’m suggesting…
The seizures are not fanciful, in my respectful submission. I would like to tell you that I fully recognize that the medical opinion, the collective weight of the medical opinion suggests that Kenneth was not in a post-seizure state when he died and if that can be determined by an autopsy, then so be it. But I submit that it appears that that may not be a totally unqualified response or answer to that particular problem.
Defence Closing, 174/5-177/5
7. The Charge to the Jury
38. In his charge to the jury, the trial judge noted the Crown’s “single theory ... that she suffocated [Kenneth] in some way”. He summarized the medical evidence on the cause of death:
In support of the Crown theory that Ms. Marquardt willfully smothered Kenneth, the prosecution has led the evidence of several eminently qualified doctors. Everyone agrees that he died from asphyxia. However, there is nothing specifically referable in their evidence to a death by suffocation. The best they could do is state that Kenneth’s death is consistent with such a process. Nothing was found in the treatment of the deceased from October 9th and following to suggest that seizure formed any part of the cause of the asphyxia.
On the other hand, you will recall the testimony of Dr. Smith, the pathologist, and Dr. Logan, the neurologist, that they could not totally foreclose the possibility of a seizure as part of the death process here. It appears to be universally accepted by all of these witnesses that a normal EEG, which Kenneth had on two occasions in the summer before his death according to the evidence of Dr. Ort, does not necessarily mean that the individual does not have epilepsy. It is often a functional rather than a structural disorder. As I understand the evidence, it can be an electrical malfunction of the brain which cannot be observed in the post-mortem examination of the brain.
Charge to Jury, 7/20-30, 9/25-11/10
8. The Appellant’s Appeal of Her Conviction
39. The Appellant appealed her conviction. No fresh evidence was proffered to the Court, nor was the verdict attacked as unreasonable. Rosenberg J.A., writing for the Court, termed as the “principal ground of appeal” the trial judge’s failure to relate to the jury the evidence relevant to the included offence of manslaughter. Rosenberg J.A. noted that the basis for a manslaughter verdict was “tenuous”:
The only defence advanced at trial was accident. The trial judge properly directed the jury that if they had a reasonable doubt that the death was accidental, the appellant was entitled to an acquittal. The appellant, in her extensive and detailed testimony, gave no evidence capable of supporting a manslaughter verdict either on the basis of a loss of control or excessive use of force to quiet the child. The appellant denied being angry, denied being under any special stress due to her relationship with her husband, denied any need to discipline the child, denied having had a black out, in short denied being in any kind of mental state that would support a lack of intent. There was no other physical or circumstantial evidence to suggest that the appellant lacked the requisite intent at the time of the death. On the other hand, the medical and other evidence strongly suggested at least an intent to cause bodily harm that the appellant knew was likely to cause death and was reckless whether death ensued or not. It was sufficient that the intent and the act of suffocation coincided at some point.
The appeal was dismissed. Legal Aid funding was refused for further appellate proceedings and, as a consequence, no application for leave to appeal to the Supreme Court of Canada was ever brought.
Ontario Court of Appeal Judgment (1998) 124 C.C.C. (3d) 375 (Ont.C.A.) at paras. 7-9
9. The Review of Dr. Smith’s Cases
Introduction
40. More than seven years later, on November 1, 2005, the Chief Coroner announced that he was conducting a review of criminally suspicious and homicide 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. One of the cases to be reviewed was Kenneth’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 and April 19, 2007, Fresh Evidence Materials, Vol. 1, Tabs 1 and 2
(a) Dr. Saukko’s Review of Kenneth’s Case
41. Pursuant to the Chief Coroner’s review, Dr. Saukko prepared a point-form report on Kenneth’s autopsy on December 14, 2006. In it, he concluded:
There is not sufficient evidence for the diagnosis of asphyxia to be made. It cannot be based only on petechial hemorrhages of thymus, pulmonary pleura and epicardium which are non-specific findings. The cause of death should be given as unascertained. Not apparent from records whether toxicology was performed.
In October, 2007, Dr. Saukko prepared a full medico-legal report on Kenneth’s death at the request of the Goudge Inquiry and subsequently testified about his findings at the Inquiry in 2008. According to Dr. Saukko, Dr. Smith’s work on the case, and his autopsy report, were deficient, his determination on the cause of death was in error, and his testimony at the Appellant’s preliminary inquiry and trial was unprofessional and misleading. Dr. Saukko’s opinions on the Appellant’s case were adopted in full, and unanimously, by the other four reviewing pathologists when they gave their evidence at the Goudge Inquiry.
Professor Saukko Autopsy Report Review Form (Dec. 14/06) Fresh Evidence Materials, Vol. 1, Tab 3
Professor Saukko Medico Legal Report (Oct. 7/07) Fresh Evidence Materials, Vol. 1, Tab 4
42. According to Dr. Saukko, Dr. Smith’s diagnosis of asphyxia was without scientific foundation. His findings were not indicative of a homicidal death. He wrote:
Dr. Smith’s testimony at the preliminary hearing is the first time to learn about his reasoning as to the cause and mechanism of death. The testimony is very contradictory, unscientific and confusing. His diagnosis of “asphyxia”, without giving the mechanism by which it has been thought to have caused the death, is based solely on the occurrence of petechiae in thymus, lungs and epicardium. Findings which are generally known to be non-specific but which according to Dr. Smith are significant and “…sufficient to make a diagnosis of asphyxia.”
After observing that Dr. Smith had not completely ruled out death by seizure, Dr. Saukko concluded:
It is illogical and completely against scientific evidence based reasoning to give any cause of death if there is one or several causes that cannot be reasonably ruled out and, in such a case, the death has to be classified accordingly as “unascertained”.
Dr. Saukko reiterated that “petechial hemorrhages of the thymus and the serous membranes such as pleura or pericardium are non-specific”, i.e. such findings were not indicative of homicide. Dr. Saukko’s concerns in the case were heightened by the harvesting of several of Kenneth’s organs prior to autopsy. As he observed, there was, as a consequence, no examination of several major organs and no post-mortem toxicology investigation was undertaken in the case.
Professor Saukko Medico Legal Report (Oct. 7/07) Fresh Evidence Materials, Vol. 1, Tab 4
See also Professor Saukko’s testimony at Goudge Inquiry, Fresh Evidence Materials, Vol. 1, Tab 5
(b) The Goudge Inquiry
43. At the Goudge Inquiry, the Commissioner examined Dr. Smith’s work in criminally suspicious cases for the period 1991 to 2001. As the Commissioner noted in his report, Dr. Smith “has neither formal forensic pathology training nor board certification in that field”. In short, he was a pediatric pathologist, not a forensic pathologist.
Goudge Report, Inquiry into Pediatric Forensic Pathology in Ontario, pp. 44-47, 116-119
44. The Commissioner was highly critical of Dr. Smith’s work from a number of perspectives. He catalogued a litany of errors that Dr. Smith made in individual cases, from providing erroneous opinions as to cause of death, mishandling exhibits, misinterpreting post-mortem artefacts as pre-mortem injuries, failing to provide reports in a timely fashion, becoming an advocate for the Crown’s case, overstating his expertise and giving imbalanced evidence. The Commissioner then said:
Finally, Dr. Smith did not always testify with the candour required of an expert witness. In some cases, he made false and misleading statements to the court.
After giving two examples of this, the Commissioner continued:
These examples are troubling. It goes without saying that an expert witness giving evidence under oath should do so with complete candour and honesty. False and misleading statements should form no part of an expert witness’s evidence.
The Commissioner further noted that Dr. Smith “actively misled those who might have engaged in meaningful oversight of his work”. He concluded his remarks by saying:
Dr. Smith was adamant that his failings were never intentional. I simply cannot accept such a sweeping attempt to escape moral responsibility. The most obvious examples of conduct that belies Dr. Smith’s assertion were his attempts to frustrate oversight that I have reviewed. At those moments when the need for accountability and oversight might have become even more apparent to those in a position to do something about it, Dr. Smith was not above using deception to attempt to throw them off the trail.
Dr. Smith is a complex, multi-dimensional person. The terrible irony is that, in some ways, the negative attributes I have described were compounded by positive qualities. He was willing to take on difficult pediatric cases that his colleagues were not anxious to do. He has a sense of responsibility that led him to cooperate with the work of this Inquiry. In his evidence, he admitted many of his shortcomings that the evidence had laid bare. And, albeit much too late, he owned up to a great deal. In addition, the evidence is clear that others found him engaging. Support staff liked working with him, and many people found him a charismatic and effective speaker. As we now know, although he did so on the basis of terribly deficient training and fundamentally flawed practices, he appeared to be completely assured, and often, in circumstances where the science could not provide certainty. These sorts of qualities not only increased the risk he posed as an expert in the criminal justice system but tended to build an unwarranted trust in already lax overseers.
Such an expert can do much damage without effective oversight by those who must provide it and constant vigilance on the part of the participants in the criminal justice system who can protect the system against flawed expert evidence. None of that happened here. The challenge is to ensure that history does not repeat itself.
Goudge Report (supra), Chapter 8, “Dr. Smith and the Practice of Pediatric Forensic Pathology”, Fresh Evidence Materials, Vol. 1, Tabs 6 and 7
45. The Commissioner spent some time dealing with the diagnosis of “asphyxia” as a cause of death. He criticized its use as a diagnosis. He noted Dr. Smith’s regular use of the term as a cause of death. He observed that the very kind of findings recorded by Dr. Smith in Kenneth’s case were non-specific:
...there is a problem with the basis on which asphyxia is diagnosed. Diagnostic criteria that were commonly used for establishing asphyxia – petechial hemorrhages in the thoracic viscera, congestion and edema of the lungs, cyanosis of the fingernails, and cerebral edema – are in fact non-specific findings. In other words, these findings can appear on a body for a variety of reasons, including, but in no way limited to, asphyxia. They are meaningless without more evidence and cannot properly be said to be diagnostic of asphyxia.
As early as 1974, forensic pathology textbooks were referring to those criteria as “obsolete”, in recognition of the fact that they were non-specific and therefore non-diagnostic. As a result, in the 1980s and 1990s, forensic pathologists should have been aware that certain findings, such as intrathoracic petechiae and congestion of the lungs, were non-specific and were insufficient on their own to substantiate the diagnosis of asphyxia.
Goudge Report (supra) at pp. 148-152, Fresh Evidence Materials, Vol. 1, Tab 6
46. Later in his report, the Commissioner returned to the “asphyxia” issue. He wrote:
It is clear that a pathologist’s opinion about the cause of death, if it is not carefully expressed, can be a major source of misunderstanding. The best example that emerged from the Inquiry was the use of the term “asphyxia”. Dr. Smith opined that asphyxia was the cause of death for a number of the cases under review. Asphyxia, based on its Greek root, literally translates as “stopping of the pulse”. However, the evidence at this Inquiry demonstrated that the term has commonly been used to mean simply that the deceased stopped breathing or was deprived of oxygen. It has also been used frequently to denote mechanical asphyxia through the intervention of a third party. The latter meaning is radically different from the former, in that it generally implies non-accidental injury. One of the problems identified at the Inquiry was that Dr. Smith used the term “asphyxia” in inconsistent ways. At times he used it in its more inculpatory sense as indicating mechanical asphyxia through the intervention of a third party. At other times he used it in its more benign sense, although this distinction would not always be apparent to the police and others who received the opinions. The situation was compounded by Dr. Smith’s testimony. He sometimes explained what asphyxia meant in ways that were, at best, confusing and nearly incomprehensible. The varied meanings that can be given to the term asphyxia not only invite caution in its use but present a compelling argument to avoid its use altogether, if confusion and misunderstanding are to be avoided.
One of the Commissioner’s Recommendations reads as follows:
Recommendation 85
a) The use of the term “asphyxia” should be avoided as an articulated cause of death. If it must be used to describe the mechanism of death, it should be elaborated on to avoid confusion.
b) Forensic pathologists in Ontario should be educated as to the dangers associated with the term “asphyxia” and, under the auspices of the Chief Forensic Pathologist, reach a common understanding as to when it should and should not be used.
c) More generally, forensic pathologists should be careful to express their opinions in terms that are not susceptible to varied meanings, but that do elucidate the issues addressed by the opinions.
Goudge Report (supra) Recommendation 85 at pp. 408-410 Fresh Evidence Materials, Vol. 1, Tab 7
47. The Commissioner directly alluded to Kenneth’s case in his report on several occasions. He wrote:
• At the Inquiry, Dr. Smith denied that he ever allowed irrelevant or prejudicial information to affect his decision making in an individual case. It is clear, however, that in a number of cases he recorded irrelevant social history in his reports. For instance, in Kenneth’s case, Dr. Smith recorded in the Sick Kids final autopsy report that Kenneth’s mother’s husband, who was not Kenneth’s father, was not present when Kenneth’s body was found because he was with his girlfriend, who was giving birth to his baby. The reason he was not there has no relevance to the pathology, but hints at an adverse moral judgment.
. . . . .
• The evidence also shows that rather than candidly admitting the reasons for his delay [in producing reports], Dr. Smith unfortunately also often blamed others for his own failings. In Kenneth’s case, Dr. Smith produced his report of post-mortem examination in April 1994, six months after the autopsy. In September 1994, he testified at the preliminary hearing in the case. Defence counsel questioned him about that six month delay. Dr. Smith told the court that the main reason for the delay was a lack of administrative support at Sick Kids. He said, “thanks to the government cutbacks, I no longer have a secretary, so I have to actually type my own reports, and any report that gets out is because I have sat there at eight o’clock at night typing it myself.” He testified that “I have to do all the work myself.”
This explanation was simply not true. Dr. Smith never lost an assistant due to “government cutbacks” or otherwise. At no time was he required to type his post-mortem reports himself. Throughout the 1990s, he had administrative assistants available to him. They were diligent and more than willing to do the work assigned to them. In fact, Dr. Smith preferred to type his own reports.
. . . . .
• Dr. Smith also from time to time used language in his testimony that was loose and unscientific. Certain inappropriate expressions are found throughout his testimony. The language of “betting” is one of them. In Kenneth’s case, Dr. Smith testified that suffocation can occur without leaving any marks and that, if he were a “betting man”, he would say that suffocation was a better explanation for Kenneth’s death than manual or ligature strangulation.
The Commissioner wrote of “the dangers in delivering a preliminary opinion”:
• Once again, the evidence at the Inquiry is instructive. In Kenneth’s case, at the conclusion of the autopsy, Dr. Smith told police that there was nothing that would indicate an obvious cause of death, but he nonetheless characterized the cause of death as suffocation by obstruction of the airways. Kenneth’s mother was arrested several weeks thereafter, almost five months before Dr. Smith issued his post-mortem report, which included no such characterization. Dr. Pekka Saukko, who reviewed the case, testified that suffocation was not a reasonable conclusion (tentative or otherwise), as there was no pathology to substantiate it.
Goudge Report (supra) at pp. 39, 131, 170, 182-3, 188, 393, 396 Fresh Evidence Materials, Vol. 1, Tab 7
10. Recent Reviews of Kenneth’s Case: Sudden Unexpected Death in Epilepsy (SUDEP)
48. The reviews conducted of Kenneth’s case since Goudge have primarily focussed on Kenneth’s medical condition during his life – whether he suffered from epilepsy – and, if so, whether the cause of death could be classified as Sudden Unexpected Death in Epilepsy (SUDEP). Dr. Avis suggests two further alternative natural causes for Kenneth’s death, both well known causes of sudden deaths as inborn errors of metabolism in infants and children known as Medium Chain Acetyl Coenzyme A Deficiency (MCAD) and Cardio Conduction defects. Dr. Milroy reports that he has doubts that either of these alternatives exist in Kenneth’s case. Whoever’s opinion one accepts, the dispute seems largely academic since both pathologists agree that SUDEP cannot be excluded as a cause of Kenneth’s death..
Report of Dr. Avis, Oct. 30/08, Fresh Evidence Materials, Vol. 2, Tab 1, p. 8; Report of Dr. Milroy, July 30/09, Fresh Evidence Materials, Vol. 3, Tab 1 pp. 8-10; Report of Dr. Avis, Sept. 4/09, Fresh Evidence Materials, Vol. 2, Tab 2, pp. 1-3; Report of Dr. Milroy, Aug. 2/10, Fresh Evidence Materials, Vol. 3, Tab 2, pp. 1-2
49. The reviewers fall into two professional expert categories. Two, Drs. Avis and Milroy, are forensic pathologists; two, Drs. Donner and Snead, are medical doctors with a specialty in pediatric neurology and epilepsy.
(a) Dr. Avis’s Review
50. Dr. Simon Avis is the Chief Medical Examiner for the Province of Newfoundland and Labrador. The Applicant requested that he provide an opinion on the case. In a nine page report dated October 30, 2008 and a four page report dated September 4, 2009, to which he attached several scientific papers, Dr. Avis disagreed with Dr. Smith’s post-mortem report that Kenneth died from “asphyxia”, and criticized substantial portions of his trial testimony. Dr. Avis wrote that the findings of petechial hemorrhages “are of no diagnostic significance and are of no assistance in determining the cause of death”. He continued:
The finding of hypoxic brain injury was to be expected because Kenneth had suffered a cardiac arrest for a sufficient period of time to cause irreversible damage to the brain and so is not specific for asphyxia. Based on the autopsy, the cause of death should have been listed as undetermined. The manner of death likewise was undetermined. (original emphasis)
Dr. Avis was critical that some of Kenneth’s organ were harvested prior to the autopsy:
Some inborn errors of metabolism, capable of causing sudden death, may only become apparent on examining individual organs such as the liver.
Dr. Avis believed that Kenneth’s history of seizures, the absence of an anatomic cause of death, and that his dilantin levels were below therapeutic levels provided substantial evidence that a seizure disorder could have caused his death.
Report of Dr. Avis, Oct. 30/08, Fresh Evidence Materials, Vol. 2, Tab 2, pp. 1-7
51. Dr. Avis conducted a thorough review of the medical history of Kenneth’s seizures. He wrote:
...Kenneth’s medical record indicates six of his seven seizures were associated with a fever. The available documentation does not support this conclusion. His seizures were generalized and lasted several minutes. They were investigated. In my opinion, Kenneth likely suffered a series of seizures in his lifetime that were not febrile seizures. (emphasis added)
Dr. Avis concluded his first report by saying:
The cause of death should be presented as Undetermined
The manner of death should be presented as Undetermined
A seizure disorder cannot be excluded as a cause of death.
. . . . .
There is no evidence in the pathology to support a finding of “asphyxia”, whether by neck compression or suffocation. (original emphasis).
Report of Dr. Avis, Oct. 30/08, Fresh Evidence Materials, Vol. 2, Tab 2, pp. 7-9
52. Dr. Avis noted that smothering could not be excluded as a cause of death since it could occur without leaving any anatomical findings. He further wrote:
I should add that given the accused’s description of Kenneth’s struggle and entrapment by a bed sheet I cannot exclude accidental suffocation as being the cause and manner of death.
Report of Dr. Avis, Sept. 4/09, Fresh Evidence Materials, Vol. 2, Tab 2, p. 3
(b) Dr. Milroy’s Review
53. Dr. Christopher Milroy, Staff Pathologist at the Ottawa Hospital, was retained by the Respondent to review Kenneth’s case. In his report dated July 30, 2009, he concluded that the pathological findings “do not establish a definitive cause of death”:
The cause of death must therefore be classified as unascertained (= undetermined).
Report of Dr. Milroy, July 30/09 Fresh Evidence Materials, Vol. 3, Tab 1
54. Dr. Milroy observed that Sudden Unexpected Death In Epilepsy (SUDEP) is rare and that the exact mechanism by which such death occurs “is still not fully understood”. He continued:
What is known is that there is an excess of deaths in patients with a history of epilepsy and there may be no pathological signs of either seizure, such as bite marks or voiding of the bladder, nor of any changes in the brain. Thus based on the pathological evidence alone, seizure disorder cannot be excluded in this case.
Dr. Milroy suggested that an expert in pediatric neurology could be consulted to determine:
a) whether Kenneth had epilepsy or only febrile convulsions,
b) whether Kenneth’s behaviour as described by the Appellant was consistent with an epileptic seizure.
Dr. Avis agreed that the opinion of a pediatric neurologist could be of assistance in the case.
Report of Dr. Milroy, July 30/09, Fresh Evidence Materials, Vol. 3, Tab 1, pp. 7-8;
Report of Dr. Avis, Sept. 4/09, Fresh Evidence Materials, Vol. 2, Tab 2, p. 1
55. Dr. Milroy agreed with Dr. Avis that the findings at Kenneth’s autopsy did not allow for a positive diagnosis of asphyxia and that “this is where Dr. Smith’s evidence was incorrect”. However, he noted that smothering should be listed “as a possible cause of death” because “in smothering deaths, there are characteristically no positive pathological findings”:
The full determination of the cause of death requires an examination of not only the pathological evidence, but other evidence, including the clinical evidence and the evidence of other non-medical witnesses.
Report of Dr. Milroy, July 30/09, Fresh Evidence Materials, Vol. 3, Tab 1, pp. 10-11
(c) Dr. Donner’s Review
56. As a result of the recommendations of Dr. Milroy and Dr. Avis, the Appellant retained the services of Dr. Elizabeth Donner, a pediatric neurologist on staff at the Hospital for Sick Children. She is currently President of the Canada Pediatric Epilepsy Network. Her expertise is in the diagnosis and treatment of children with seizures and epilepsy, and in SUDEP in children. She states:
In 1999 2000 I conducted a research study in which I reviewed cases of SUDEP in children, the results of which were published in the peer reviewed medical journal Neurology in 2001. It was and remains the largest study of its kind (Donner, 2001). I currently hold a grant to study SUDEP in Canadian children from Citizens United for Research in Epilepsy.
Dr. Logan, who testified for the Crown at the Appellant’s trial, is her senior colleague. Dr. Donner’s report, dated April 5, 2010, had a number of peer-reviewed studies attached to it.
Report of Dr. Donner, April 5/10, Fresh Evidence Materials, Vol. 4, Tab 1, pp. 1-2
Did Kenneth have epilepsy?
57. In her report, Dr. Donner defined epilepsy:
Epilepsy is the medical term applied to the chronic, or longstanding, condition in which a person has repeated unprovoked seizures. The term ‘unprovoked’ is important, as some conditions may provoke seizures and so do not meet the definition of epilepsy.
Report of Dr. Donner, April 5/10, Fresh Evidence Materials, Vol. 4, Tab 1, p. 5
58. Dr. Donner reviewed Kenneth’s medical history: She noted that he had several febrile seizures early in his life and stated:
It is well known that the first seizures of children with epilepsy are often associated with fever.
She observed that he had many afebrile seizures thereafter – on April 27, 1993, June 4, 1993, June 5, 1993 (twice), and July 7, 1993. From this, Dr. Donner concluded:
In my opinion, Kenneth Wynne had epilepsy. He initially presented with febrile seizures. However, he then had several unprovoked afebrile seizures meeting the diagnostic criteria for epilepsy. His epilepsy was significant enough, in the opinion of his treating physicians, to warrant treatment with an anticonvulsant medication. Further to this, when he did not tolerate his first anticonvulsant, phenobarbital, the epilepsy was deemed significant enough to warrant continued treatment with another medication, phenytoin. It is not standard practice, nor was it in 1993, to treat febrile seizures with these anticonvulsant medications.
Report of Dr. Donner, April 5/10, Fresh Evidence Materials, Vol. 4, Tab 1, pp. 5-7
Was Kenneth’s death consistent with SUDEP?
59. In her report, Dr. Donner provided the criteria set out in the medical literature for SUDEP:
1. The deceased had epilepsy, defined as a history of two or more unprovoked seizures.
2. The deceased died unexpectedly while in a reasonable state of health.
3. The death occurred suddenly. In some cases, the death may have occurred later from the complications of the cardiac or respiratory arrest.
4. The death occurred during normal activities in benign circumstances.
5. Autopsy findings demonstrate no toxicological or anatomic cause of death. (Leestma, 1997)
Relying on the opinions of Dr. Saukko, Dr. Avis and Dr. Milroy that the cause of Kenneth’s death was unascertained, Dr. Donner concluded that Kenneth’s death met all these criteria. She observed that “in the majority of SUDEP cases, the deceased is found dead in bed.” As regards the Appellant’s description of Kenneth’s seizure on October 9, Dr. Donner wrote:
Ms. Marquardt’s description of Kenneth’s behaviour is not consistent with a typical seizure and is not consistent with her description of Kenneth’s previous seizures. Seizures may take many forms; a seizure may involve kicking, or jerking of both legs. A seizure may also include a child being able to call out. A combination of these symptoms, however, is unlikely.
However, it is not necessary for a seizure to precede death in SUDEP. Most reported cases of SUDEP are not witnessed, making it difficult to ascertain whether a seizure preceded death. There is evidence of a seizure before the death in up to 67% of SUDEP cases (Kioster, 1999; Opeskin, 2003). In my published review of 27 cases of SUDEP in children, ten cases were witnessed deaths. In only five of those ten cases was the child seen to have a seizure immediately before death (Donner, 2001). Likewise, in a smaller report of four cases of SUDEP in children, two of four deaths were witnessed with no evidence of a preceding seizure (Weber, 2005).
Dr. Donner said:
In my opinion, the death of Kenneth Wynne meets the criteria for SUDEP.
Report of Dr. Donner, April 5/10, Fresh Evidence Materials, Vol. 4, Tab 1, pp. 4, 7-9
(d) Dr. Snead’s Review
60. On receipt of Dr. Donner’s opinion, the Respondent retained the services of Dr. Snead, a pediatric neurologist and Head of the Division of Neurology, and Director of the Centre for Brain and Behaviour at the Hospital for Sick Children. He provided two reports on Kenneth’s death, the first dated June 30, 2010, and the second Supplementary Report dated August 9, 2010. The Respondent has since advised the Appellant that she does not rely on the opinions of Dr. Snead. The Appellant, however, does.
61. From the medical records, Dr. Snead concluded that Kenneth’s first afebrile seizure occurred when he was six months old, and he had several thereafter. Dr. Snead presented a thorough and complete history of the opinions of the various experts at the Appellant’s trial, and reviewed Dr. Saukko’s opinions.
Report of Dr. Snead, June 30/10, Fresh Evidence Materials, Vol. 5, Tab 1, pp. 4-6
Did Kenneth have epilepsy?
62. Dr. Snead defined a seizure:
A seizure is akin to a short circuit in [the] rhythmic [electrical] activity [in the brain] and represents an abnormal electrical discharge in the brain caused by an uncontrollable electrical discharge from a group of neurons in the brain (Engel and Pedley, 2008). This paroxysmal neuronal discharge results in abnormal episodic behavior, the ictal event. If the neurons involved in the seizures are bilateral and all over the brain, the ictal event is a generalized convulsion. If the abnormally firing neurons are in only one part of the brain then the ictal event will reflect the function of the part of the brain that is seizing. For example if the seizures are in the part of the brain that controls movement of a limb, then the ictal event will consist of jerking of that limb. The period following the ictal event is the post-ictal state during which the patient may have an alteration of consciousness.
He then defined epilepsy:
Epilepsy may be defined as spontaneous, recurrent seizures (Engel and Pedley, 2008). In a child Kenneth’s age seizures precipitated by fever, i.e. febrile seizures do not represent epilepsy since the seizures do not occur spontaneously, but rather are provoked by fever. However, Kenneth had afebrile seizures. So, he did have spontaneous recurrent seizures and thus did have a diagnosis of epilepsy. The evidence for this is that fever was never documented at the time Kenneth had seizures. Therefore, even though the term ‘febrile seizures’ is used in the medical record to describe his recurrent seizures, this is incorrect.
The medical records, the prescriptions for anti-convulsant medications, and the Appellant’s “consistent and compelling” descriptions of Kenneth’s seizures convinced Dr. Snead that Kenneth suffered from epilepsy.
Report of Dr. Snead, June 30/10, Fresh Evidence Materials, Vol. 5, Tab 1, pp. 7-8
Supplementary Report of Dr. Snead, Aug. 9/10, Fresh Evidence Materials, Vol. 5, Tab 2, pp. 4-5
Was Kenneth’s death consistent with SUDEP?
63. Dr. Snead noted that SUDEP was well recognized in both neurological and forensic pathology literature at the time of Kenneth’s death. He commented that SUDEP is “a diagnosis of exclusion and therefore subject to uncertainties”. Like Dr. Donner, he observed that most SUDEP victims are found dead in bed, have a history of generalized convulsive seizures and were on anti-convulstant medication. He then added:
It is generally accepted that SUDEP results from cardiac and/or respiratory arrest in a patient with epilepsy. However there is more and more evidence accruing that SUDEP may well be a primary cardiac phenomenon.
Dr. Snead reported that there is no consensus among experts whether the cardiac arrest occurs during the seizure itself, or without a seizure, or after a seizure. Dr. Snead wrote:
Therefore, the testimony of Drs. Shemie, Logan, and Smith was in error, since it is well documented in the literature that SUDEP can occur during, after, or even in the absence of a seizure. (original emphasis)
He concluded that “SUDEP cannot be ruled out as a cause of Kenneth Wynne’s death.”
Report of Dr. Snead, June 30/10, Fresh Evidence Materials, Vol. 5, Tab 1, pp. 2, 9-10
Supplementary Report of Dr. Snead, Aug. 9/10, Fresh Evidence Materials, Vol. 5, Tab 2, p. 6
64. Dr. Snead addressed the Appellant’s belief that Kenneth was saying, “Mommy Mommy” during the events that precipitated his death:
... there is ample documentation in the literature that SUDEP can occur anytime during (ictally) or after (postictally) a seizure. It is not uncommon for patients to vocalize in a confused state postictally, therefore Kenneth could have been calling “mommy, mommy, mommy” during a postictal state or even during an ictal state (i.e. during a seizure) had the seizures begun in one part of the brain, i.e. been partial onset. Classically, in partial onset seizures there often is vocalization during the seizure itself. Moreover, it is not uncommon for children with generalized convulsive epilepsy to have partial onset seizures. So, the scenario could have been that Kenneth was in the throes of a partial onset seizure when he was found by his mother and subsequently had SUDEP. Alternatively, Kenneth could have been postictal and confused when the mother found him and then subsequently succumbed to SUDEP. In either scenario, he would have been confused and agitated and difficult to disentangle from the sheets.
Supplementary Report of Dr. Snead, Aug. 9/10, Fresh Evidence Materials, Vol. 5, Tab 2, pp. 9-12
Dr. Milroy’s comments on Dr. Snead’s report
65. On August 2, 2010, Dr. Milroy provided brief comments on Dr. Snead’s report. He agreed:
“There is no dispute that patients with epilepsy can die unexpectedly.” Dr. Milroy further agreed with one of Dr. Snead’s theses when he wrote:
The mechanism of death in SUDEP is not clear, but there is increasing evidence of cardiac arrhythmias in the deaths of these patients.
Report of Dr. Milroy, Aug. 2/10, Fresh Evidence Materials, Vol. 3, Tab 2, pp. 3-4
Dr. Milroy’s report on literature for SUDEP in childhood, and Dr. Donner’s response
66. After the reports of Dr. Donner and Dr. Snead, Dr. Milroy was asked by the Respondent to report on the literature regarding SUDEP in childhood. In a report dated November 13, 2010, he concluded that SUDEP “occurs in childhood but is less common than in adulthood”. In her response of November 23, 2010, Dr. Donner agreed but continued:
It is important to note that all reports of incidence and prevalence of SUDEP must be interpreted with caution, as the difficulty with case identification of SUDEP has been well documented. (Schader, 2006; Coyle, 1994)
She stated:
The best identified risk factor for SUDEP is a history of frequent convulsive seizures. In the 4 months prior to Kenneth’s death, he had 5 afebrile seizures documented in the medical chart, at least 4 of which were witnessed to include convulsive movements. This is consistent with frequent convulsive seizures and put Kenneth at risk for SUDEP.
Report of Dr. Milroy, Nov. 13/10, Fresh Evidence Materials, Vol. 3, Tab 3, p. 13
Report of Dr. Donner, Nov. 23/10, Fresh Evidence Materials, Vol. 4, Tab 2, pp. 3-4
PART III
THE LAW
Introduction
67. The Appellant submits that the post-conviction evidence of Dr. Avis, Dr. Saukko, Dr. Milroy, Dr. Donner and Dr. Snead constitutes fresh evidence and should be admitted on appeal in the interests of justice pursuant to section 683(1) of the Criminal Code. As well, the Appellant has placed other documents before the Court – the Backgrounder of the Chief Coroner and parts of the Goudge Inquiry and the Appellant’s affidavit filed on this appeal – as aids to provide context for the new expert opinions.
68. The Palmer pre-requisites for the admission of fresh evidence are:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief; and,
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
In Truscott, this Court provided a somewhat different perspective on the admission of fresh evidence. The Court said:
At the first stage, the appellate court addresses the admissibility of the fresh evidence with a view to determining whether it sufficiently undermines the reliability of the verdict so as to render the conviction a miscarriage of justice. If the court is satisfied that the fresh evidence has that effect on the verdict and should be admitted, the appellate court must quash the conviction as a miscarriage of justice.
The Court noted that, pursuant to section 683(1) of the Criminal Code, the Court may admit fresh evidence “where it considers it in the interests of justice”:
The "interests of justice" control the admission of all evidence offered on appeal. That phrase signals a broad discretion to admit evidence following a context sensitive inquiry into the totality of the circumstances.
Evidence tendered on appeal falls into two overarching categories. The evidence in each category ultimately aims at the reliability of the verdict, but reaches that target through different routes. The most common kind of fresh evidence is directed at a finding of fact made at trial that was material to the verdict reached at trial. This kind of fresh evidence challenges the reliability of the verdict by producing evidence that the appellant claims could remove, or at least render unreliable, one of the factual underpinnings of the verdict. This kind of evidence essentially seeks to re litigate with the assistance of new evidence a factual issue that was litigated at trial.
The Court then re-stated the Palmer criteria in the following words:
[The Palmer] criteria are well known. They encompass three components:
· Is the evidence admissible under the operative rules of evidence?
· Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
· What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
The evidence tendered by the Applicant as fresh evidence is undoubtedly admissible under the operative rules of evidence. It is, therefore, its cogency and its availability at trial through due diligence that needs to be considered.
R. v. Palmer (1980), 50 C.C.C. (2d) 193 (S.C.C.) at 205
Reference re: Truscott (2007), 225 C.C.C. (3d) 321 (Ont.C.A.) at paras. 81-93
1. Is the Evidence Sufficiently Cogent in That it Could
Reasonably Be Expected to Have Affected the Verdict?
69. The cogency of the fresh evidence has, as its backdrop, the collapse of Dr. Smith’s reputation which was catalogued at the results of the Goudge Inquiry. At the time of Kenneth’s autopsy and the Appellant’s trial, Dr. Smith had an outstanding reputation in his field, among his peers, and in the criminal justice system. He was Canada’s most frequently consulted pediatric pathologist. The Appellant’s trial counsel made some attempts to consult their own experts but with little or no success. The Appellant herself did what she could by testifying in her own defence and categorically denied having done anything to cause Kenneth’s death. Her primary defence was that Kenneth was epileptic and that this caused his death but the evidence in support of this was wanting at her trial. The evidence suggested that Kenneth’s seizures were largely or entirely febrile in nature, and Dr. Smith gave no credence to SUDEP as a possible cause of death. The new medical opinions strongly favour the conclusion that Kenneth was epileptic. As for Dr. Smith, his reputation is now in tatters. His opinions no longer command respect. In 2008, the Goudge Report drew damning conclusions about his work, his ethics and his honesty. But, in 1995, the Appellant’s jury knew none of this.
70. The fresh evidence falls into two parts.
a) Did Kenneth Suffer from Epilepsy?
71. At trial, there was confusion among the experts as to how many of Kenneth’s seizures could be attributed to fever and how many could not. The majority opinion seemed to be that most, if not all, were febrile seizures. Dr. Avis was the first to conduct a more careful analysis of the medical records and realize that Kenneth had a history of afebrile seizures. Consequently, the new opinions are that Kenneth was epileptic. The combination of a thorough review of the contemporary medical records of Kenneth’s many visits to Hospital Emergency Departments, the medications that he was on, and his mother’s descriptions of his generalized seizures all contribute to the new certainty of Dr. Avis, Dr. Donner and Dr. Snead that he had the disorder and that many of his seizures, especially those later in his life, were undoubtedly epileptic seizures. As Dr. Snead writes, epilepsy is not usually hard to diagnose, and was not hard to diagnose in Kenneth’s case. He states:
In fact, the medical record documents several afebrile seizures. As well his treating physician clearly thought he had recurrent afebrile seizures, i.e. epilepsy, since a decision was made to treat Kenneth with antiepileptic drugs, first Phenobarbital and then Phenytoin. Anti-epileptic drugs are not used to treat febrile seizures because they are self-limited and disappear, as the child grows older. The fact that a medical caregiver chose to treat this child is compelling evidence for me that the child had spontaneous, recurrent afebrile seizures, i.e. epilepsy.
. . . . .
. . .the child was seen by multiple physicians over time and I found the history given by the mother to these physicians that Kenneth had had a generalized convulsive seizure consistent and persuasive.
. . . . .
I find the medical record compelling for the reasons stated above. While one can never be completely certain of anything in medicine, my certainty in this case exceeds the legal standard of more likely than not and even goes beyond a reasonable doubt that this child had epilepsy.
Dr. Milroy does not challenge these conclusions, and he was the one to first urge consultation of pediatric neurologists.
Report of Dr. Snead, Aug. 9/10, pp. 3-5
b) Can SUDEP Be Excluded as a Cause of Death?
72. All experts, Dr. Saukko, Dr. Avis, Dr. Milroy, Dr. Donner and Dr. Snead, and Drs. Butt, Crane and Whitwell who explicitly agreed with Dr. Saukko’s opinions at the Goudge Inquiry, cannot exclude SUDEP as a cause of Kenneth’s death. His death meets the five criteria for SUDEP and, while death by smothering cannot be excluded as a cause of death either, it would be an unusual coincidence if a SUDEP-prone child was, in fact, a victim of a homicide. Importantly, the fresh evidence gives a new weight to the Appellant’s exculpatory statements to everyone at the time of her child’s death, to her trial testimony, and to her unwavering claims of innocence throughout her life sentence. No longer can her evidence be pitted against the evidence of the experts. Now, the experts give valuable credence to her account of how Kenneth met his death. There is nothing in her description of October 9, 1993 that does not accord with a SUDEP explanation for Kenneth’s death.
Conclusion on Cogency
73. The fresh evidence is cogent. To return to the three Palmer tests of cogency, the fresh evidence is relevant to the Appellant’s defence in that it bears upon a decisive or potentially decisive issue in the trial. The fresh evidence is credible, and at its core, unchallenged, and so is reasonably capable of belief. The evidence, if accepted, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
2. Why Was the Evidence Not Adduced at Trial?
74. To some extent, it may be that some of the new expert opinions were “available” at the time of trial. However, Dr. Smith was a potent challenge to any expert and to any counsel who might try to challenge his opinions. As well, the understanding of SUDEP has improved significantly since 1995 and most of the papers and research cited by the experts were written since then. Dr. Milroy, for example, gathered all the papers cited by Dr. Donner and Dr. Snead in their reports. All 7 cited by Dr. Donner were post-1995; 21 of the 32 cited by Dr. Snead were post-1995.
75. Defence counsel had consulted a forensic pathologist, Dr. Fred Jaffe, on the case in 1994. Dr. Jaffe advised that he was unable to assist since he was retiring. In a letter dated June 19, 1994, Dr. Jaffe wrote to defence counsel:
I think I suggested to you that a paediatric pathologist would be most effective in advising you in the above matter. However, it is a fact of life that, here in Toronto, all paediatric pathologists are associated with the Hospital for Sick Children and are, thus, colleagues of Dr. Smith.
Dr. Jaffe suggested the defence might want to approach Dr. Rao for assistance. The defence consulted Dr. Jaffe again in the summer of 1995. He met one of the Appellant’s trial counsel on August 14, 1995. In a memorandum to the file, counsel wrote:
Dr. Jaffe…made some interesting observations about the preliminary hearing evidence. He believes that Dr. Smith has handed [us] a chance of acquittal with his equivocal testimony. He also feels that Dr. Huyer is unqualified to opine about the cause of death.
A further meeting with Dr. Jaffe was scheduled for September 9, 1995 but there is nothing in trial counsel’s file to suggest whether or not it took place.
Materials relating to Dr. Jaffe, Fresh Evidence Materials, Vol. 1, Tab 8
76. On the advice of Dr. Jaffe, the defence consulted Dr. Chitra Rao, a pathologist who regularly conducted autopsies in suspicious death cases in Hamilton, Ontario. She did not provide a report to the defence but the defence file contains a memorandum dated September 19, 1994 outlining her opinions. According to the memorandum, she considered Dr. Smith’s autopsy to have been thorough and she disbelieved the Appellant’s explanation of the events on October 9, 1993. Further, she did not believe that Kenneth was epileptic. She was of the opinion that his seizures were likely only febrile in nature and that phenobarbitol was the proper drug to prescribe for febrile seizures. The defence considered calling Dr. Jaffe and Dr. Rao, was given funding authorization by Legal Aid to call one of them, but elected to call neither of them. Neither Dr. Jaffe nor Dr. Rao provided defence counsel with the kind of opinions that are now provided by the fresh evidence experts.
Materials relating to Dr. Rao, Fresh Evidence Materials, Vol. 1, Tab 9
77. The rules for the admission of fresh expert evidence on appeal are less stringent than for the admission of conventional witness testimony. One reason for this may be that it is not in the interests of justice to allow a failure to lead expert evidence to fall on an accused who is most unlikely to have been in a position to exercise his or her own judgment on the issues. Thus, the Appellant was in no position to appreciate the complexities behind the potential causes of Kenneth’s death, especially in the context of Dr. Smith’s almost unassailable reputation in the early 1990s. Her trial counsel did not obtain opinions that reflect the views of Dr. Saukko, Dr. Avis, Dr. Milroy, Dr. Donner or Dr. Snead.
Conclusion
78. The Appellant has maintained her innocence for almost 17 years, including more than a decade in the penitentiary. It is no coincidence that she has now, after so many years, received support from experts in forensic pathology and pediatric neurology that Kenneth died as a result of his epilepsy, and not at her hands. The Supreme Court of Canada has asked this Court to consider the fresh evidence and determine whether her conviction constitutes a miscarriage of justice. The fresh evidence provides a clear and concise answer to the question. The Appellant is a victim of a miscarriage of justice. Dr. Smith played a vital role in her trial and presented evidence that convinced the jury that Kenneth was a homicide victim, through smothering or strangulation. The fresh evidence provides a natural cause of death related to Kenneth’s epileptic condition that cannot be excluded as the cause of death It is in the interests of justice that her conviction for murder be quashed and a new trial ordered.
PART IV
ORDER REQUESTED
79. It is respectfully submitted that the fresh evidence should be admitted, the conviction for second degree murder quashed and a new trial ordered.
80. The Appellant estimates that the time required for oral argument is 45 minutes.
ALL OF WHICH IS SUBMITTED this 7th day of January, 2011.
_________________________
JAMES LOCKYER
LOCKYER CAMPBELL POSNER
1515-180 Dundas Street W.
Toronto, Ontario
M5G 1Z8
Counsel for the Appellant
AUTHORITIES CITED
R. v. Palmer (1980), 50 C.C.C. (2d) 193 (S.C.C.) at 205
Reference re: Truscott (2007), 225 C.C.C. (3d) 321 (Ont.C.A.) at paras. 81-93
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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;
