"The fresh evidence also takes matters an important step further. Three neuropathologists of repute are essentially ad idem in their opinions on the case. While none of them can eliminate shaking as a possible cause of death, all independently put forward an alternative cause, or causes, of death that take into account autopsy and radiographic findings that Dr. Smith either discounted (erroneously in the case of pneumonia and aspiration) or ignored (in the case of VST). These findings should have been considered – they present an evidence-based cause of death that makes use of Dr. Nag’s autopsy findings and Dr. Pearse’s radiography observations. Dr. Shouldice’s opinion is largely irrelevant since she does not have the expertise to consider these alternative causes of death – indeed, a reading of her opinion suggests that she still believes Dustin’s head injuries were most likely caused by shaking because the only alternatives that she can come up with are either unlikely or can be eliminated entirely. Actual affirmative proof of an accidental cause of death like that provided by the four neuropathologists is unavailable due to the improper storage of the brain – but the Appellant should not have to pay a price for this. In light of the fresh evidence, it can be stated with confidence that a father (or other caregiver) would not be charged today if the circumstances surrounding Dustin’s death were to recur and the evidence now available was assembled."
RICHARD BRANT: AFFIDAVIT; ONTARIO COURT OF APPEAL;
(RICHARD BRANT'S OWN WORDS: See preceding post: His affidavit; Ontario Court of Appeal);
REMINDER: Julian Sher's documentary on Brenda Waudby - "A Mother's Ordeal" - will be aired on Global TV on Friday May 6, 2011 at 10PM (9PM Manitoba/Sask.)
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BACKGROUND: (GLOBE AND MAIL); Richard Brant was convicted of aggravated assault in 1995 for the death of his two-month-old son, Dustin. Mr. Brant was taking Dustin for a walk when he noticed red foam around the baby’s nose. Dustin died two days later, on Nov. 18, 1992. (Then) Dr. Smith (but since struck from the register of the College of Physicians and Surgeons of Ontario) concluded Dustin had been shaken to death, despite the fact that the baby’s brain had rotted away after morgue staff mistakenly left it in a container of water. His findings contradicted the findings of a neuropathologist who had examined the child’s brain and concluded he had likely died of pneumonia. Mr. Brant said he felt compelled to plead guilty to aggravated assault to avoid a possible manslaughter conviction. He conceded he had accidentally jostled Dustin during a physical struggle with his wife. In January, 2009, the Ontario Court of Appeal granted Mr. Brant permission to reopen the case and fight his conviction.
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"PART 1 – STATEMENT OF THE CASE: At 11:00 a.m. on Tuesday, November 17, 1992, the Appellant discovered his nine week old son Dustin to be in extremis," the Factum begins.
"Emergency services were summoned," it continues.
"Dustin was placed on life support at the hospital but died the next day. On April 21, 1993, the Appellant was charged with manslaughter and failing to provide the necessaries of life. On May 25, 1994, he was committed for trial on the single count of manslaughter. On April 21, 1995, the Appellant appeared before Mr. Justice Byers in the Ontario Court (General Division) and pleaded guilty to aggravated assault on the manslaughter indictment. On May 19, 1995, he was sentenced to six months imprisonment.
A series of events commencing in 2005 led to the Appellant seeking an extension of time pursuant to section 678(2) of the Criminal Code to file an appeal to set aside his guilty plea and conviction for aggravated assault. On January 6, 2009, Rosenberg J.A. granted the extension of time and the Appellant filed a Notice of Appeal of his conviction. On this appeal, the Appellant is seeking to have his conviction quashed and a verdict of acquittal entered. The Respondent has advised that it, too, will urge this disposition on the Court.
Because the Appellant pleaded guilty in the Ontario Court (General Division), there was no evidence called at his trial. The Appellant was represented by then defence counsel Robert Graydon, now Mr. Justice Graydon of the Ontario Court of Justice. His file is no longer available having been destroyed many years ago. Transcripts of the preliminary hearing have been obtained, but the transcript for the first day (December 18, 1993) is not available. Counsel have collected additional documents and information from the case, including part of the Crown brief, into a Joint Appeal Book and use them as an aid for setting out the facts of the case.
Exchange of letters between Lockyer and Graydon in June and July/07, Fresh Evidence Materials, Tab 1
PART II
STATEMENT OF THE FACTS
1. The Appellant’s History
The Appellant is now 38 years of age. He is a Mohawk Indian, and grew up on a reserve in Shannonville, Ontario, near Belleville. He was 20 when his girlfriend Mary Farrell gave birth to their baby Dustin.
Affidavit of the Appellant,, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 2
2. Dustin’s Birth
Ms. Farrell had a daughter Samantha (2) from a previous relationship and the Appellant had taken on the role of stepfather to her. Dustin was born on September 9, 1992 to Ms. Farrell and the Appellant. After his birth, Dustin spent five days in the hospital during which he was breastfed. Once discharged, he began bottle feedings and was doing well. On November 1, 1992, the family moved into a home at 64 Catherine Street in Belleville. Neither parent was working at the time so they shared Dustin’s and Samantha’s care.
Evidence of M. Farrell, pp. 125/10-30, 128/1-129/30
3. The Events Surrounding Dustin’s Death
On Friday, November 13, 1992, three days before his collapse, his mother and the Appellant took him to the family doctor, Dr. Hipwell, because Dustin was “breathing funny” and was congested. Dr. Hipwell found Dustin to be “generally normal”. He used the visit to give Dustin his first two immunization shots for diphtheria, tetanus pertussis, whooping cough and influenza, and gave him the oral polio vaccine. He advised them to give Dustin Tylenol in case he developed a fever from the immunizations. According to her mother, Samantha was also unwell - feeling nauseous and vomiting on Friday and during the weekend. Dustin remained feverish during the weekend.
Evidence of M. Farrell, 125/10-127/30; Evidence of Dr. Hipwell, March 31/94, 41/25-45/20
Evidence of Dr. Padfield, May 19/94, 44/25-30
On Monday, November 16, 1992, Ms. Farrell left with Samantha to borrow some money from her mother to buy some formula. She stayed out and had dinner at her mother's house. Dustin remained at home with the Appellant. When Ms. Farrell returned, she and the Appellant argued about the length of time she had been gone. At the preliminary hearing, she described the argument as follows:
I come in and Richard started to make formula. I was upset cause I got into an argument with my mother. I was stressed out and we got into a conversation. And then I got mad and I swung at Richard, but I missed. Like I didn't hit him. And then he just like pulled me to the floor and told me not to do that and to calm down. And I realized I was wrong. So I got up and I said I was going to leave to calm down. And I went to a friend's house and took my daughter with me.
Ms. Farrell said while she and the Appellant argued, Dustin was asleep on the couch. The Appellant gave a similar description of the argument to the police. Ms. Farrell and Samantha spent the night at her friend Sherry Sine's house. Dustin spent the night at home with the Appellant. The Appellant states in his recent affidavit that he fed him at 10:00 p.m. and 2:00 a.m., after which he played with him for an hour. Ms. Farrell was asked at the preliminary hearing whether she had any concerns about leaving Dustin with the Appellant when she left for the evening. She answered “No, Richard loved his son”.
Evidence of M. Farrell, March 2/94, 129/10-132/15
See Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 7
On December 2, 1992, Mary Farrell's brother, John Farrell, provided a statement to police. According to Mr. Farrell, he spoke to the Appellant on the evening of November 16th after Mary had already left. The Appellant told him that he was holding Dustin, and that Mary was hitting him. She also threw a coffee table at him. He had to grab her by the throat and pin her to the floor. John Farrell was not called as a witness at the preliminary hearing.
Statement of John Farrell, Dec. 2/92, Appeal Book, Tab 9
The following morning at 10:00 a.m., Ms. Farrell returned to the house to shower and change her clothes. Dustin was on the couch and the Appellant was about to take him for a walk. Ms. Farrell suggested that he take Samantha as well. Ms. Farrell described Dustin as being “fine, he was laughing, cooing away and everything”. She and the Appellant argued again.
Evidence of M. Farrell, 132/15-134/20
Statement of Mr. Farrell, Appeal Book, Tab 9
Around 11:30 a.m., the Appellant left with Samantha and Dustin, who was in a baby carriage, and decided to go to the Riverside Restaurant in downtown Belleville, which he often visited. En route, he met Scott Maracle, his cousin who had not seen Dustin since his birth. Maracle asked to see him. The Appellant lifted the rain shield from the carriage and discovered Dustin, who was dressed in a snowsuit, to be apparently lifeless in the carriage with red foam around his nose. His eyelids were blue. Maracle described what happened next:
Q. What happened after that? You said that Richard had gone around and wiped this material from his face.
A. Yes and I guess just rubbed it between his fingers and then that is when he picked up the baby.
Q. And can you describe how he picked up the baby?
A. Like this. He cradled it.
Q. Okay, so you are making a motion and… you are putting your left hand in a motion scooping under the baby's head.
A. Yes.
Q. In the head area. And the right hand?
A. I guess the lower part of the abdomen to pick the baby up.
…
Q. And what happened after that?
A. Then Richard had the baby in what seemed to be like a larger snowsuit and he had a zipper and he moved the zipper and was calling the baby and that is when I said "Maybe you had better go inside because of the inclement weather".
Q. Okay, when you say that he moved the zipper, how did he move the zipper?
A. Uh just in a motion like this. To be honest I don't even think that he moved the baby just the coat… the zipper runs north and south. It was an attempt to I guess wake the baby.
Maracle was asked by the Crown:
Q. Did you see Richard or anyone else shake that baby?
A. No, actually I never saw anyone shake it. I just saw him move the snowsuit.
Q. Did you see anyone handling the baby in what you would think is a rough manner?
A. No.
Evidence of Scott Maracle, Mar. 31/94, 51/25-61/10
See Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 10
Belleville Police Cst. Ling, who was off duty at the time, happened to be driving on Front Street near the Riverside Restaurant and observed the Appellant and Scott Maracle meet. His willsay described his observations in the following terms:
• That on the 17th of November 1992, at approximately 10:30 11:00 a.m. [PC Ling] was northbound on North Front Street, stopped at the traffic light at West Moira Street
• That he observed Richard Brant pushing a baby carriage while walking eastbound on West Moira Street, just east of North Front Street
• That Richard Brant apparently came across a friend and met with him on the sidewalk
• That Richard Brant bent down and began unbuckling the rain cover of the carriage, apparently to show off the baby to his friend
• That at this time the traffic light turned green and he did not see what happened past this point
• That in his opinion, from all appearances, Richard Brant was unaware of anything troublesome with the baby during his observations.
Willsay of P.C. Ling, Appeal Book, Tab 11
The Appellant walked into the Riverside Restaurant holding Dustin. Two local residents, Donna Summers, a customer, and Daphne Maracle, a waitress, were inside. Summers, who was having a coffee at the Riverside at the time, told the police:
A young man walked through the door carrying an infant. There was a small child with him as well. There was also another chap with him who appeared to be aboriginal. He stood inside the door and said quietly “don't think the baby's breathing”. He put the baby up to his left shoulder in the manner that you hold a baby. Everyone was staring at him. I approached and said to Daphne, the waitress, “Call an ambulance”. I went over to the young man and asked to see the baby. The baby was lowered. The baby was wearing a snowsuit and a hat. I observed that the baby was waxy white in colour and still. There was oxygenated blood coming from the nose. The blood was bubbly and bright red, but it wasn't running. I asked to take the baby, and he gave the baby to me.
According to Summers, the Appellant was in shock. Daphne Maracle related a similar series of events. They placed Dustin on a table at the back of the restaurant, removed his snowsuit and Maracle gave him mouth to mouth while Summers administered gentle compressions on his chest. The two of them worked as a team until the ambulance arrived.
Evidence of D. Summers, May 19/94, 82/10-84/10; Evidence of D. Maracle, May 19/94, 86/10-89/15
Statement of D. Summers, Apr. 22/93, Appeal Book, Tab 12
The paramedics were called at 11:06 a.m.. On their arrival, Dustin had no vital signs and his lips and ears were blue. Paramedic Art Liddle took over the mouth to mouth resuscitation. He found vomit mixed with blood in Dustin’s mouth and throat which he cleared as best he could. An “Ambulance Call Report” listed “possible aspiration” as the cause of Dustin's condition. It noted that his airway was obstructed, and bloody vomit was suctioned from his chest. Dustin was transported to Belleville General Hospital where he was treated by Dr. Patel, an acute care pediatrician. According to Dr. Patel's Discharge Summary, Dustin was not breathing, was unresponsive, and was “basically… dead on arrival”. His pupils were fixed and dilated. He had no external bruising or injuries. Dr. Patel noted extensive bilateral hemorrhages. After half an hour, hospital staff managed to resuscitate him, but his status remained poor. Hospital records indicate that when a suction tube was inserted, a small amount of blood was removed from Dustin's stomach.
Evidence of A. Liddle, May 19/94, 65/10-70/20; Evidence of Dr. Patel, March 2/94, 49/1-55/20
Dr. Patel’s Discharge Summary, Joint Appeal Book, p. 83, Tab 19, p. 1
Dr. Patel spoke to the Appellant, who was visibly shaken and upset:
I got a brief history from the father, who had indicated to me that the baby was with him that morning and he had taken the baby out in a stroller on that wintry morning and because of the cold weather, the baby was covered with a sheet or a blanket and he was walking downtown and somebody wanted to view the baby. So he lifted up the blanket and found the baby not breathing. There was blood oozing out from the nose.
Dr. Patel was asked at the preliminary hearing if Dustin could have had an adverse reaction to the tetanus pertussis vaccine from the previous Friday. He replied:
It’s really, really possible. Most of the actions that occur with pertussis immunization occur within 48 hours of the immunization being given and most of the common reactions are high fever for 24 to 48 hours and the fever can be as high as over 40 degrees and some babies can convulse with the pertussis immunization because of the high fever.
. . . . .
Now, there’s been reports in the literature where people have claimed, including medical personnel, that after giving pertussis, there is some children or babies who have collapsed within 12 hours and have suffered permanent neurological brain damage. Now, there’s a lot of controversy about this. We’re not in agreement at this time whether this is from pertussis vaccine or not, but those are the concerns with the pertussis vaccination at this time, yes.
Dr. Patel also agreed that Dustin could have contracted a viral infection from his sister Samantha and that this could have caused his vomiting. He described the resuscitation of Dustin at the hospital as lengthy and aggressive, but disputed the suggestion that resuscitative efforts were capable of causing retinal haemorrhaging. He was shown an article from a reputable medical journal Pediatrics, which found that retinal haemorrhages could be caused by resuscitative efforts, but maintained his position that this was not possible.
Evidence of Dr. Patel, March 2/94, 53/25-30, 63/15-64/10
Cst. Comeau followed the ambulance to the Belleville General Hospital and spoke with the Appellant. His willsay outlines their conversation:
- the accused advised he and his girlfriend Mary Farrell had a fight, and that he left his residence with two children Dustin Brant and Samantha and observed a friend (Scott Maracle) in front of the riverside restaurant
- accused advised Scott asked to see the baby (Dustin Brant) which was in stroller, he lifted the rain guard and observed the baby to have red thick foam around nose and that he didn't know if baby was breathing, accused stated that 1015 min earlier at home baby was smiling
accused advised he then ran into restaurant to call ambulance
The Appellant gave the same account of events to Detective Portt at the hospital. Later the same day, Cst. Comeau again spoke with the Appellant, who, when asked, denied having ever struck Dustin in the head. Cst. Comeau described the Appellant as “remorse[ful] (sic), crying, verbally upset”. Comeau also spoke to Mary Farrell before and after she got to the hospital:
Mary advised that her and the accused had a verbal fight the night before which escalated into a pushing match but no one was hurt. After [the] fight she left for the evening and when she returned this morning, she had another verbal fight with the accused and that the accused took both children and left the residence. Mary was crying and advised she was on her way to the hospital. Spoke to Mary once she arrived at the hospital. Mary advised she took Dustin to Dr. Hipwell on Friday and Dustin was o.k. except dry scalp.
While at the hospital, Comeau seized Dustin's clothing. The inside of his jacket was soaked with blood.
Willsay of of Cst. Comeau, Appeal Book, Tab 16
Willsay of of Det. Portt, Appeal Book, Tab 18
With the Appellant’s consent, Detectives Portt and Mailhot searched his residence that afternoon. Detective Mailhot's willsay described his interaction with the Appellant while at the house:
That once inside the house he asked BRANT to accompany him to the upstairs bedroom.
That the adult's bed and the infant's crib were in the same bedroom.
That BRANT stated that he had taken the sheet off the baby's bed because the baby threw up and BRANT stated that the baby threw up on their bed as well. BRANT stated that he had fed the baby, burped the baby and the baby threw up.
That he asked BRANT what had happened last night between BRANT and his common law Mary FARRELL with BRANT stating that they had had a little disagreement and that Mary left and Mary came back this morning and had a shower with Samantha and they started to argue again and Mary left.
That he asked BRANT where he was going with the baby and BRANT replied for a walk and that down by the restaurant by the bridge Scott MARACLE pulled up and asked to see the new baby. BRANT looked at the baby and saw him [frothing] from the nose. BRANT wiped his nose.
That he asked BRANT if he shook the baby and BRANT stated that he shook the baby but demonstrates a light shake.
That BRANT stated that he had been sedated at the hospital.
That BRANT appeared to be in an emotional state of shock.
Willsay of Det. Mailhot, Appeal Book, Tab 17
At 4:45 p.m., Dustin was transported by ambulance to Hotel Dieu Hospital in Kingston, Ontario. Upon arrival, his condition remained poor. Dr. Pearse, a radiologist at Hotel Dieu, had a C.T. scan done on Dustin’s arrival at the hospital. From the chest x-ray, he observed:
There is some increased radiodensity to the lungs which would be compatible with aspiration.”
From the CT Scan of the head, Dr. Pearse saw that Dustin’s brain “was really quite swollen” and noted a subdural haematoma on the right side of the brain which, Dr. Pearse testified, “usually ... indicates some type of non-accidental trauma.” There was no sign of a skull fracture. His opinion was that the injury likely occurred within 12 hours of the CT Scan, with 24 hours as an outside time.
Evidence of Dr. Pearse, March 31/94, 1/25-6/15, 21/25, 28/15-29/10, 33/5-10
Radiology reports of Dr. Pearse, Joint Appeal Book, Tab 20
Dr. Pearse made one significant observation from the C.T. scan of Dustin’s head. He wrote in his February 9, 1993 report:
The sagittal sinus is quite attenuating in its appearance raising the question of whether there is a sagittal sinus thrombosis, however, in a child this young, there is still a fair amount of fetal hemoglobin on the circulation which could give this appearance.
Neither of the pathologists, Dr. Nag nor Dr. Smith, drew on this observation in their reports. Today, three neuropathologists who have looked at the case see it as having been an important observation in determining a possible cause of death
Dr. Pearse’s report, Feb. 9/93, Appeal Book, Tab 20
Dustin was observed by Dr. Padfield, the treating physician, to have “multiple quite massive retinal haemorrhages”. Dr. Padfield spoke to both parents who told him of the visit to Dr. Hipwell on Friday and the immunization shots, and that Dustin had “a little bit of a cold, upper respiratory infection on the Monday”. In his discharge report, Dr. Padfield made note of Dustin's recent history of “a mild upper respiratory tract infection for the few days prior to his admission”, as well as “increased density in the upper lung lobes bilaterally, which could be some aspiration'”. He concluded his report with a “presumptive diagnosis” of shaken baby syndrome.
Evidence of Dr. Padfield, May 19/94, 41/1-50/20
Dr. Padfield’s Discharge Letter, Feb. 8/93, Joint Appeal Book, pp. 101-102, Tab 21, pp. 2-3
Dustin died in the Hotel Dieu at 00.36 on Wednesday, November 18.
Evidence of Sherry Allegrin, March 2/94, 4/20
4. The Autopsy
A Warrant for Post Mortem Examination included the following history:
Domestic night before mother left came back next morning. Domestic starts again. Mother leaves [without] baby. Father takes baby for walk fluid foam around mouth. Father admits to shaking baby.1
A decision was made that the autopsy should be conducted by a specially qualified neuropathologist, Dr. Sukrita Nag, a Professor of Neuropathology at Kingston General Hospital.
Warrant for Post-Mortem Examination, Joint Appeal Book, Tab 24
Dr. Sukrita Nag commenced the postmortem on Dustin's body at 1:30 p.m. on November 18, 1992. Dustin was well nourished. She noted no external marks of violence on his body. A total body x-ray was done which revealed no fractures or trauma. Dr. Nag made the following findings:
1. Dustin’s lungs showed acute chronic pneumonia, and a severe bronchiolitis.
2. He had an acute subdural haematoma on the right side of the brain, containing an accumulation of approximately 18 grams of blood.
3. His brain was “slightly swollen”.
4. He had retinal haemorrhages. She was unable to quantify the degree of retinal haemorrhaging as she had not had an opportunity to examine sections taken from the eyes before testifying at the preliminary hearing.
In her post-mortem report, Dr. Nag certified the cause of death to be:
1. Respiratory failure secondary to: a) bronchopneumonia
b) aspiration
2. Massive subdural haematoma
At the preliminary hearing, Dr. Nag was asked the cause of death:
A. The cause of death was an acute subdural, the acute subdural hematoma. That is the massive blood clot lying over the right hemisphere of the brain. It’s of a very large volume. And this amount of blood within the intracranial cavity, you know, causes rising intracranial pressure and, and is a cause of death.
Q. All right. And I notice you’ve listed also under cause of death bronchopneumonia?
A. There is, I’ve listed pneumonia because, I’ve listed them in the chronological order I think they may be causative. I felt the pneumonia came first and then the patient, the baby got the subdural hematoma and died of the subdural hematoma.
Q. And what in your findings assisted you in coming to that conclusion?
A. Again, the reason is I felt the changes in the lungs were more than 12 hours old.
Q. Okay. What was it about what you saw that made you come to that conclusion?
A. Again, as I mentioned, that in addition to the acute inflammatory cells that there were chronic inflammatory cells present, like lymphocytes and plasma cells. There also were giant cells present. And I actually showed these slides to some of my colleagues and they felt also that this was more than 12 hours old. And this is why I felt that the lung lesion were, was more than 12 hours old.
At the time of giving her testimony, Dr. Nag had not had an opportunity to examine the slides that had been taken of the lungs at autopsy (Dr. Smith, when asked to provide his opinion on the case, had had been given the slides and had not returned them. Dr. Smith himself claimed that he had sent the slides back).
Evidence of Dr. Nag, March 2/94, 96/25-97/25. 114/10-118/20
See Transcript, May 25/94, 1/1-15
5. The Continued Investigation
Dr. Benoit Bechard, the Regional Coroner, reviewed Dr. Nag's post-mortem report and was not satisfied with it:
I was concerned because the clinical history, which I got in part from the police report, indicated to me the possibility of a shaken baby. In particular, the police report stated that the clinicians at the hospital, Belleville General and at Hotel Dieu, had identified retinal haemorrhages, which is haemorrhages in the retina of the eye. And the autopsy report did not give a description of the eyes or an examination of the eyes, although it did state that there were retinal haemorrhages.
Dr. Bechard also found the descriptions in Dr. Nag’s report to be unsatisfactory.
Evidence of Dr. Bechard, May 19/94, 6/25-11/25
On February 8, 1993, Dr. Padfield prepared a “Discharge Letter” in which he reviewed the facts provided to him by police, and noted that Dustin had been suffering from an upper respiratory tract infection prior to his admission to hospital. He concluded:
Because of the absence of any obvious history of any injury, together with the neurological/ opthalmological findings, including massive bilateral retinal haemorrhages and a right subdural haematoma, the presumptive diagnosis must be “death due to shaken baby syndrome”.
Dr. Padfield’s Discharge Letter, Feb. 8/93, Appeal Book, Tab 21
On February 9, 1993, Dr. Bechard issued a Warrant for Post Mortem Examination to Dr. Smith. The warrant read:
Please review autopsy findings and available gross specimens to provide opinion suspicion of Shaken Baby Syndrome.
In his testimony, Dr. Bechard described Dr. Smith as “the authority in the Province” in cases of child deaths.
Evidence of Dr. Bechard, May 4/94, 9/10
Warrant for Post Mortem Examination, Joint Appeal Book, Tab 27
6. The Autolysis of the Brain
Proper examination of a brain at autopsy requires that the brain be removed, suspended in a bucket containing 20% formaldehyde and left to “fix” for at least 8 days before sections can be taken from it. Paul Baskin, the technician whose task this was, recalled that he carried out the proper procedure in suspending Dustin’s brain in the proper liquid solution.
Evidence of Dr. Ford, March 2/94, 20/25-21/10
Evidence of Dr. Rossiter, March 31/94, 83/25-84/15
On November 30, 1992, twelve days after the autopsy, an autopsy technician was about to prepare Dustin’s brain for washing and observed that there was no formaldehyde in the bucket, and no string suspending the brain. The brain was simply sitting in water and was already in a state of autolysis (decomposition). This essentially rendered it useless for further macro or microscopic examination.
Evidence of Dr. Rossiter, March 31/94, 89/10-91/20
An investigation was conducted at the hospital. Dr. Ford, the Director of Autopsy Service, testified:
And so we were all very upset that this had happened and no one could recollect that something like had happened before. We were as sure as we can be that the brain was correctly handled initially and it was put in formaldehyde. Mr. Baskin was quite sure he had done this because he remembers consulting with Dr. Nag as to whether this brain could be suspended by the small blood vessels. In very small brains, sometimes the vessels are too delicate and a sling has to be placed underneath with gauze.
Dr. Ford presented a feasible theory:
The only possibility we could arrive at, and this is only a possibility and there’s no way we can be sure, is that on the 23rd [of November], that is the week before, the brain was mistakenly removed and washed as if it were to be cut on the following day, on the Tuesday, and because it wasn’t on the list to be cut that day, the pathologist will go down and cut the brains that were on the list and only those brains that were on the list. It was left in water by accident until the following Monday when it should have been washed and was then discovered.
Evidence of Dr. Ford, March 2/94, 23/25-30/15
7. Dr. Smith’s Report on Dustin’s Death
Dr. Smith provided his opinion under significant shortcomings. There were no brain sections or slides to examine. The number of photographs taken were few. Nevertheless, he issued a report on April 15, 1993 containing opinions that differed from those of Dr. Nag in material respects.
Dr. Smith made the following findings:
a) Dustin had an acute subdural haemorrhage on the right side of his brain. Additionally, there was an area of haemorrhage on the left side of the brain, but he was unable to say whether it was subdural or not.
b) Dustin’s brain was swollen (cerebral edema), and was heavy for a child of his age.
c) Dustin had retinal haemorrhages “at multiple levels at the back of the eye and the retina” and haemorrhages in the optic nerves.
Dr. Smith concluded that the cause of death was non-accidental injury – either he was a victim of vigorous and prolonged shaking (but, according to Dr. Smith, whether there was a subdural haemorrhage on the left side of the brain was an important unknown in this regard)2, or he was a victim of a blunt force injury. He died from “either shaking or something hit his head or his head hit something”. 3
Evidence of Dr. Smith, March 30/94, 3/20-28/5, 44/1-5
Dr. Smith was highly critical of Dr. Nag’s work:
This is a botched autopsy. The report of this autopsy, the paper that this autopsy is written on is not worthy of filing as an exhibit. It should be filed in the garbage can. I’m sorry to say it, but I would not accept this report from a resident in pathology. I don’t care who signed their name to it. It is wrong from the word “go”. If you look at the demographics on this report, the information is wrong. Whoever signed this report either did not read the hospital chart, did not read the report before they signed it or they did not care. I don’t know which of those three explanations is correct.
This, and the failure to properly retain Dustin’s brain, meant that:
...we are missing some observations that would be nice to have that would help sort out the issue of direct impact and laterize (sic) a direct impact versus a shaking injury. We don’t have it.
Dr. Smith explained that, if he had done the autopsy, he would have examined the spinal cord and clavicles for damage, and looked for fingermark impressions in Dustin’s chest, abdomen, and shoulder areas. He would have looked for contusions of the brain.
Evidence of Dr. Smith, March 30/94, 29/5-30/10, 68/20-30
Dr. Smith agreed that there was controversy in the medical literature over the viability of Shaken Baby Syndrome – and whether accidental short household falls could lead to serious or fatal blunt force injury. He was asked about a case in Timmins in which Mr. Justice Dunn had not accepted his evidence:
Q. Judges have said that about you, you’ve done shoddy work.
A. One judge, I’m told by you, one judge wrote that in his submission. I don’t know. I don’t know what he wrote. That’s Judge Dunn who, prior to hearing the defence experts, in fact, told me on more than one occasion private conversations how hasty he was with the work I had done and others had done at the hospital. 4
Evidence of Dr. Smith, March 30/94, 49/20-62/5, 69/5-15
Dr. Smith rejected Dr. Nag’s opinion that Dustin may have died from pneumonia. He agreed that Dustin had signs of pneumonia but classified it as “Adult (sic) Respiratory Distress Syndrome”5 consequent on his head injury, cardiac arrest and resuscitation. Similarly, he believed that the aspiration resulted from the head injury. Dr. Smith testified:
Now, I don’t know if I’ve explained that point well, but I’m absolutely convinced that all the changes in his lung can be attributed to his arrest and resuscitation.
Dr. Smith suggested that Dustin’s thymus showed “early changes of stress effect” consistent with his opinion. He said:
So what are my conclusions? My conclusions are one is that I would disagree with Dr. Nag. I see [Dustin’s] lung changes are very reasonably attributable to the results of having been arrested and having lived on life support. I believe the thymus shows soft evidence to support that.
Evidence of Dr. Smith, March 30/94, 38/20-40/30
8. The Arrest of the Appellant
On April 15, 1993, Detectives Portt and Mailhot met with Dr. Bechard and Dr. Smith at the Crown Attorney's Office to review Dr. Smith's report. According to the notes of Detective Portt, Dr. Smith stated at the meeting that Dustin died from "a severe shaking". In an Information to Obtain later sworn by Detective Mailhot, he said:
On the 15th of April, 1993, the informant met again with Dr. Smith, who released his findings into the cause of death of the infant with the death resulting from blunt trauma and in the absence of a credible explanation, the injury must be regarded as nonaccidental in nature. In conversation with Dr. Smith, the informant learned that the infant died as a result of a severe shaking and that the infant would have been shaked [sic] up to a maximum of two hours prior to the infant being transported to Belleville General Hospital and that person(s) would have noticed changes in the infant immediately after the shaking. [emphasis added].
On April 22, 1993, the Appellant’s surrender was arranged through his counsel and he was charged with manslaughter and failing to provide the necessaries of life. The Information alleged that the offences were committed "between the 16th day of November in the year 1992 and the 18th day of November in the year 1992, all dates inclusive". On the advice of his counsel, the Appellant did not provide a statement to police. A synopsis prepared by the police referred to the argument between the Appellant and Ms. Farrell the evening before Dustin died:
On the 16th of November 1992, at approximately 1900 hrs to 1930 hrs Marry Farrell became involved in a domestic with Richard Brant with each party assaulting the other. During the confrontation, Richard Brant was holding the deceased in his arms. This domestic is described in the statement of John Michael Farrell.
The synopsis did not contain any allegation as to what actually caused Dustin’s death, and did not contain a claim that the Appellant must have shaken Dustin.
Police Synopsis, Joint Appeal Book, Tab 7
The Appellant's bail hearing took place on April 23, 1993. Detective Mailhot testified at the hearing and agreed that, before receiving Dr. Smith's report and his conclusion that Dustin had died as a result of “severe shaking”, he did not have reasonable and probable grounds to charge the Appellant. The Appellant was released on an undertaking at the conclusion of the hearing.
Transcript of Show Cause Hearing, 15/25-30, 21/1-27/15, 40/15-46/20
That same day, the investigating officers conducted a videotaped interview with Mary Farrell. She described the events of November 16, the evening prior to Dustin's hospitalization, as follows:
[On November 16th], we got into an argument it got like we were shoving each other and that we were just mad at each other we didn't mean anything. He never strike, he never hit me, he never did anything like that like we just shoved each other and then I left and took Sam with me and went to my girlfriend's.
…
Dustin was safe, he was laying on the couch, he was like, you know, he never fell off the couch, he never did nothing. Sam didn't do nothing to him. My mom had boughten Sam cheezies and Sam was eating the cheezies while we were arguing.
She explained the events when she returned home the next morning, and the Appellant’s departure for a walk with the two children. Shortly thereafter, she received a call that Dustin was in the hospital:
… Sherry phoned and told me that Ricky called said Dustin was in the hospital and that there was something wrong. And I couldn't understand it because I just seen my child 15 minutes before that and he was fine, like I can't understand that… so then I called the hospital and the nurse told me that Dustin wasn't breathing and that I should get there right away, and I was hysterical. [emphasis added].
Statement of Mary Farrell, Apr. 23/93, Appeal Book, Tab 8
When pressed by the officers, Ms. Farrell denied that the Appellant had ever been physically abusive to her or the children, and described him as a loving and caring father.
Rick has never hit that child, Rick has never hit Sam, I have never [hit] Dustin, I have never hit Sam, like there is no problem with the kids we both love them kids. Rick treats my daughter like its his own. Like she calls him “daddy” and everything.
The detectives told Ms. Farrell they suspected Dustin had been shaken to death by the Appellant. She disagreed. Detective Mailhot suggested that the Appellant must have been holding Dustin as they fought on Monday evening. Ms. Farrell disagreed:
The baby wasn't in either one of our arms when we got into the fight. He was on the couch like that was like there was no kids in either arms it was just between us.
Counsel for the Appellant and Respondent have both conducted recent interviews with Ms. Farrell and her memory of the events remains the same now as it was in 1993.
Statement of Mary Farrell, Apr. 23/93, Appeal Book, Tab 8
9. The Preliminary Hearing
Prior to the Appellant's preliminary inquiry, there were well-documented concerns recorded about the strength of the Crown's case. On September 15, 1993, Crown Attorney James Cavanagh wrote to Cst. Brennan of the Belleville Police requesting that he get in touch with Dr. Smith to ask him the following questions:
1. What, if any difficulties arise from the fact that the brain could not be examined? Does this affect the certainty of the diagnosis of shaking baby syndrome?
2. Attached is a synopsis of the accused's description of the events. Is this version in any way contradicted by the medical evidence? If so, please explain how?
3. Also, enclosed is a copy of the ambulance attendant's report. Do the presence of blood and vomit, as indicated in this report, corroborate the accused's version of events? Why are the blood and vomit present? Are they related to the shaking baby syndrome or to some other independent cause?
There is no record of any response from Dr. Smith.
Cavanagah’s Sept. 15/93 Memo to Cst. Brennan, Joint Appeal Book, Tab 31
On November 19, 1993, Mr. Cavanagh wrote a memorandum to the file addressed to "whatever Crown ends up with this". It read in part:
There are problems with this case:
1. The brain was placed in water rather than alcohol which made it unexaminable. I have not yet spoken with Dr. Smith to ask him if this would affect the certainty of the shaken baby syndrome diagnosis.
2. The accused's actions are not consistent with those of a man who knows he has just seriously hurt his young child. He was unconcerned until he saw the problems with his baby and then became very upset.
3. A number of witnesses seem to indicate the presence of blood, froth, or vomit in the mouth of the child. I have not yet clarified with Dr. Smith whether these symptoms are consistent or not with the shaken baby syndrome.
4. The only evidence the brief has of the child being exposed to trauma is during a fight the night before the day of his death in which his mother and father were fighting and the baby was held by one of them and could possibly have been struck. I am not sure what use the defence could make of this trauma to the child but we should anticipate some use of it.
Cavanagah’s Nov. 19/93 Memo, Joint Appeal Book, Tab 32
Undated handwritten notes which appear to have been made by the Crown in preparation for the preliminary hearing included the following entry under the heading "Dr. Nag":
Unusual findings
• nails were blue
• lymph nodes enlarged and changed reacting to "probably" infection process
• lungs acute pneumonia inflammable bronchitis process
• acute subdural haematoma on R side
• 18 [illegible]
• brain slightly swollen [emphasis added]
Under the heading "Dr. Patel", the notes read:
• … resuscitation efforts can cause retinal haemorrhage …
Handwritten notes, Joint Appeal Book, Tab 33
On November 30, 1993, Sheila Walsh, the Crown Attorney who had taken over the case, wrote to Mr. Graydon about Dr. Smith's schedule, noting that "if I understand this case, we will not get a committal to stand trial without the evidence of Dr. Smith". On December 6, 1993, police and crown attorneys met with Dr. Smith to prepare for the Appellant's preliminary hearing. The Crown's notes included the following:
Poss theories
has to be severe shaking; serious, violent blow to head
1) during fight betw. parents Mon night remote b/c
baby wld show symptoms immed
no other marks of violence or bruises on body (emphasis added)
2) after mother last saw baby
blow; drop; shake by acc
3) baby cld have been injured Mon night + reinjured Tues am
The Appellant's preliminary hearing took place over five days before Provincial Court Judge Hunter in Belleville, Ontario. On May 25, 1994, he was committed to stand trial the charge of manslaughter and discharged on the count of failing to provide the necessaries of life
Walsh letter to Graydon, Nov. 30/93, Joint Appeal Book, Tab 34
Handwritten notes of meeting with Dr. Smith, Dec. 6/93, Joint Appeal Book, Tab 35
The Crown knew of problems with the Shaken Baby Syndrome hypothesis (Dr. Smith had talked about some of the issues at the preliminary hearing). James Cornish, a Crown in Milton, advised his counterparts in Belleville that Mr. Graydon might be on to some of these issues. This caused Belleville Crown Lee Burgess to prepare a file memorandum in which he described Dr. Smith as “an expert and sort of Canadian guru” and observed that transcripts of testimony he had given in the past were available and they “show inconsistencies in his evidence when compared one with the other”.
Memo from Crown Lee Burgess, Nov. 7/94, Appeal Book, Tab 36
10. The Appellant’s Guilty Plea
On April 21, 1995, the Appellant was arraigned on the charge of manslaughter before Mr. Justice Byers of the Ontario Court (General Division). He pleaded not guilty as charged but guilty to "the offence arising from the same transaction, aggravated assault". The Crown6 then read in the following facts:
Richard Brant, the accused before the court, was the natural father of the deceased, Dustin Brant. Dustin was about two to three months of age at the time he died, that being November 18, 1992. It's noted sir, on that date, that the accused was walking down the street. He had the child in the baby carriage and was approached by a friend and it's noted that the friend wanted to see the baby. When he showed the baby to his friend, he noted that the child had stopped breathing.
Investigation autopsy revealed that the child died, as a result of subdural haematoma. In other words, the shaken baby syndrome. Investigation by the police on the night prior to this particular incident revealed that the accused and his common law spouse, the mother of the baby, had an argument and she left the residence taking the other child with her and that this child stayed with the accused. It's noted in the course of this disagreement, there was an altercation between the two children (sic) and the baby was shaken as a result of that and subsequent to that died by as a result of the subdural haematoma.
I should indicate sir there was an autopsy performed upon the child and I believe that confirmed some of the damage to the child but as a result of, I guess, some difficulties with the autopsy, a second autopsy was done which subsequently confirmed the subdural haematoma.
I should indicate this plea is taken or accepted by the crown on the basis that the child died or the child died as a result of the injury and that injury occurred from that shaking on the prior evening.
Mr. Graydon was asked by the Court whether the facts were substantially correct. He responded:
Your Honour, may I elaborate for the record please? It's there was an incident within 48 hours prior to the infant child's death where the natural mother was about to leave the home with Dustin and Richard, who was in the home, didn't want her to leave with Dustin. Inadvertently, if you will, but to meet the standards of aggravated assault as now defined by the Criminal Code we accept that there was an unlawful act but the parties engaged in a brief struggle for the boy and it was very brief and one of them fell down with the boy. It was during this struggle that the incident must have happened because it's Mr. Brant's statement and he would state under oath and the evidence would support him, he was genuinely grieved, genuinely, emotionally disturbed and upset over what he saw when he opened up the baby carriage downtown Belleville.
Everything he did, everything he said, how he comported himself afterwards was consistent with a father that was shocked about what had happened. It must have happened during this incident as I just explained to you and it's on that basis he entered the plea.
A "joint range" of between six and nine months imprisonment was recommended by the Crown and defence. After hearing brief submissions, Justice Byers made the following comments before adjourning the matter for sentencing:
Thank you, Mr. Graydon. I know these shaken baby cases, as we have described them, are very difficult for counsel and it sounds to me like this is kind of a compromise which it is, that seems to be in order.
The consequences of a conviction on the original charge would be serious but it's also possible from the Crown's perspective it would have been a difficult case to prove and very difficult case to try as you lawyers know that the law isn't simple in this area and that is, I suppose, a reflection of behaviour that triggers these events in the first place. It's sometimes hard to just conceptualize the kind of criminal behaviour this is involved. Most of the young children become inparented by people who are too young and who have difficulties in their own lives. It's difficult to realize how fragile a young baby is.
Transcript of Plea in Ontario Court (General Division), April 21/95
On May 19, 1995, the Appellant was sentenced to six months imprisonment. A transcript of the proceedings on this date is not available.
The focus of the plea, then, was on the events of the evening before Dustin’s death as related to the police by John Farrell, an emphasis which had appeared several times during police questioning of witnesses, in police comments on the case and in the police synopsis of the case. A reasonable interpretation of what was said at the time of the plea is that Mr. Graydon and the Crown were aware of the Appellant's position (infra) that he would not agree to having intentionally hurt Dustin and tried to frame a set of facts from his argument with Ms. Farrell the evening before that did not include an allegation of shaking Dustin. Arguably they failed in their endeavour – it is open to question whether the facts acknowledged by the defence actually disclosed the offence of aggravated assault (infra). 7 The trial judge perceptively referred to the plea and the facts read in as a compromise.
11. The Appellant’s Affidavit and His Decision to Plead Guilty
The Appellant has sworn an affidavit on this appeal. In it, he describes the effects on him of losing his first and only son, and the circumstances that led to his decision to plead guilty.
See Affidavit of the Appellant Mar. 25/11, Fresh Evidence Materials, Tab 19
The Appellant was joyful at the birth of his son. He was devastated by his death. He never did anything to harm Dustin. At the time, he thought Dr. Nag's conclusion that Dustin died of pneumonia made sense because of his symptoms during the weekend preceding his death. After he was charged, he was told by Mr. Graydon that Dr. Smith was a force to be reckoned with, and that his chances of success at trial were slim. He understood from Mr. Graydon that his own credibility would be in issue and his criminal record would be a telling consideration in this regard, and that his testimony would be weighed against Dr. Smith's opinions.
Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, paras. 16-20
The Appellant always maintained his innocence to his own counsel. His present appellate counsel met in Cobourg with his trial counsel, Mr. Justice Graydon. Justice Graydon advised that the Appellant often attended his office for interviews, never once admitted to causing harm to Dustin but always fervently denied it. Justice Graydon recalled the Appellant "pleading" with him to believe that he "didn't do it". At the time, however, Justice Graydon accepted the science of Shaken Baby Syndrome, and believed Dr. Smith to be the foremost expert in Canada in pediatric forensic pathology. Although aware that Dr. Smith’s opinions had been successfully challenged at least once in the past, he told the Appellant that Dr. Smith was the “God” of his profession. Justice Graydon’s view of the case was that, since the Appellant insisted that Dustin's mother had done nothing to harm Dustin, the Appellant had to have caused his injuries. He told the Appellant that it would be his word against Dr. Smith's word. He told the Appellant that he would likely be convicted of manslaughter and receive a sentence of four to six years imprisonment. 8 When a potential resolution of a plea to aggravated assault was offered by the Crown, Mr. Graydon urged the Appellant to accept it because it did not involve a plea to an offence of culpable homicide. The Appellant reluctantly agreed to accept the offer, but insisted that Mr. Graydon tell the Court that he had done nothing to intentionally hurt Dustin. Mr. Graydon promised to do his best in this regard. The facts behind the aggravated assault plea were to come out of the argument between the Appellant and Ms. Farrell the day before Dustin went into a coma, with the included allegation that he was holding Dustin during the argument and he fell with him as he grappled with Ms. Farrell.
Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19
Before entering his guilty plea, the Appellant learned that his girlfriend was pregnant. In the end, a combination of Mr. Graydon's recommendation, Dr. Smith's evidence, the evidence of the other clinicians, and his own family circumstances were decisive. He decided to plead guilty, on the understanding that Mr. Graydon would try his best to make it clear to the Court that any injury that he caused to Dustin was unintentional.
Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 18
The Appellant did his best to put Dustin’s death behind him but never came to terms with having acknowledged responsibility for it. In his affidavit, he says:
I still do not know what caused Dustin's death, but I always suspected it could have been pneumonia, like Dr. Nag originally said. I believe it would be in the interests of justice to allow my appeal of my conviction. I did not cause Dustin's death or assault him in any way, and pled guilty because I felt I had no other realistic option. I entered my plea because I feared the consequences of flawed pathology. If I knew then what I know now, I would not have done so. I ask the Court to take the burden of having harmed him from my shoulders.
Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 23
PART III
THE FRESH EVIDENCE AND THE LAW
A. THE FRESH EVIDENCE
1. Events Subsequent to the Plea, and the Holding of the Goudge Inquiry
More than ten years later, on November 1, 2005, the Chief Coroner announced that he was conducting a review of homicide and criminally suspicious cases, dating back to 1991, in which Dr. Charles Smith had performed an autopsy or provided an opinion. Dustin’s case fell into the latter category. 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. Five pathologists were chosen to participate in the review:
· Dr. John Butt (Vancouver)
· Professor Christopher Milroy (Sheffield, England)
· Professor Helen Whitwell (Birmingham, England)
· Professor Jack Crane (Belfast, North Ireland)
· Professor Pekka Saukko (Helsinki, Finland)
Backgrounder “Review of Criminally Suspicious and Homicide Cases Where Dr. Charles Smith Conducted Autopsies or Provided Opinions”, November 1, 2005 Fresh Evidence Materials, Tab 2
Dr. Helen Whitwell, a forensic pathologist for the Home Office in England and the former head of the Department of Forensic Pathology at the University of Sheffield, was the lead external reviewer in Dustin’s case. She has particular expertise in cases of infants who have died from head injuries, including the so-called Shaken Baby Syndrome, and has published widely in the field. In the standardized Autopsy Report Review Form, dated December 6, 2006, which she completed for the Office of the Chief Coroner, Dr. Whitwell noted that Dr. Smith's conclusions that Dustin died from non-accidental injury and blunt injury were "overstepping the mark", and that his testimony from the Appellant's preliminary hearing was neither reasonable nor balanced. She noted “an extraordinary attack on Dr. Nag as to her competence”. Dr. Whitwell felt unable to determine the cause of death “due to limited information, including no brain”. She completed the Form by saying: The presence of pneumonia raises the possibility that it may have been material to the death.
Dr. Whitwell’s Autopsy Report Review Form, Dec. 6/06, Fresh Evidence Materials, Tab 4
In early 2007, the Appellant was contacted by counsel for the Association in Defence of the Wrongly Convicted (AIDWYC). He authorized counsel to assist him in reopening his case and, subsequently, in June, 2007, had a personal meeting with Commissioner Goudge.
For the Goudge Inquiry, Dr. Whitwell produced a more detailed MedicoLegal Report Relating to the Death of Dustin Brant. She critiqued Dr. Smith's conclusion as to the cause of Dustin's death:
Dr. Smith opines that the findings of subdural haemorrhages, cerebral oedema with optic/retinal haemorrhages is pathogonomic of shaken baby syndrome. This almost certainly would be the view of many other clinicians and pathologists at the time. However Dr. Smith then goes on to comment that the findings indicate death has resulted from blunt trauma when there is no evidence whatsoever to support this i.e. there is no evidence of scalp bruising, skull fracture or contusional brain injury.
A number of clinicians at this time would also raise blunt trauma as a possibility, particularly in light of the research in the late 1980s suggesting that impact was required to produce the findings in the so called shaken baby syndrome and suggesting the reason that no bruising was identified was that impact was on to a soft surface.
She wrote:
Diagnosis of the so called “shaken baby syndrome”
This was a controversial area in 1994 and remains so today. This case falls into the difficult group of subdural haematoma, cerebral swelling and ocular haemorrhages in the absence of other injury (e.g. bruises) in the young infant. The issue of whether trauma has occurred as well as [the] degree of force necessary is open for debate.
Dr. Whitwell testified that there was no evidence of blunt trauma in Dustin’s case:
Q. All right. So when Dr. Smith said that the autopsy findings in this boy indicate that death resulted from blunt trauma, was there any positive pathology to support that
A. No.
. . . .
Q. And then he goes on to say: "In the absence of a credible explanation, this injury must be regarded as nonaccidental in nature." Do you agree?
A. No.
According to Dr. Whitwell, pneumonia should not have been discounted as a potential cause of death:
Aside from the issues of the head injury, this child showed evidence of pneumonia which potentially could have been the cause of death with the possibility that 'shaking' as a result of resuscitation subsequently took place. Review of histology indicates a chronic pattern of lung pathology with evidence of recent aspiration and chronic inflammatory cells. In addition there appears to be an acute component. Dr. Smith does not concede this possibility in testimony.
Dr. Saukko, one of the other external reviewers used by the Chief Coroner, testified alongside Dr. Whitwell at the Inquiry. He agreed that Dustin's preexisting pneumonia could have caused his death.
Dr. Whitwell’s Medico Legal Report, Fresh Evidence Materials, p. 24, Tab 5, p. 8
Dr. Whitwell: Testimony at Goudge Inquiry, Fresh Evidence Materials, pp. 36, 42, Tab 6, 151/25-152/15, 163/5-20
Dr. Saukko Testimony at Goudge Inquiry, Fresh Evidence Materials, p. 53, Tab 6, pp. 6-7
Dr. Whitwell was asked to compare the Appellant's case to the English case of Lorraine Harris, a mother whose conviction for manslaughter was overturned in 2005 by the Court of Appeal. Dr. Whitwell was asked:
Q. And the caregiver's explanations to take just Dustin's case, for example, could it be called almost a classic kind of explanation being given by a caregiver in one of these cases?
A. It's a similar tale story that I've heard in a number of these cases in this age group where the pathological findings are essentially the triad.
…
Q. … in Lorraine Harris' case, she was a mom and her she actually had the doctor over at her house at 1:30 in the morning on the day of her daughter of her son's death, her son, Patrick's death, and one hour later she reported that she found her son pale, and cold, and floppy when she picked him up. Is that your memory of the case?
A. Yes, that's correct.
Q. And it was a case where Patrick had no external injuries.
A. Correct.
Q. Where the triad existed.
A. Correct.
Q. And therefore, seems to be a particularly good match, if I can put it that way, for Dustin's case… am I right?
A. Yes… similar to Dustin.
…
Q. And have you testified personally at the Court of Appeal in that case?
A. Yes.
…
Q. And would I would it be fair to summarize your evidence it's actually summarized in the judgment itself but it would be fair to summarize your evidence that one should be extremely cautious of convicting someone when the only evidence against the individual was the existence of the triad?
A. Correct.
Q. And, of course, the Court of Appeal accepted that judgment, or that opinion, but way of quashing the conviction. Is
A. They did, yes.
Q. that right? And if we assume for a moment and I appreciate you don't necessarily know all the ins and outs of Dustin's case, but certainly, as you said, Dustin's case does seem to be a remarkable parallel to the circumstances, at least at first sight, of Lorraine Harris. Am I right?
A. Correct.
Dr. Whitwell: Testimony at Goudge Inquiry, Fresh Evidence Materials, Tab 6, 13/1-19/15
Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario, gave evidence at the Goudge Inquiry. He testified that Dr. Smith's conclusions from his review of Dustin's case should have been looked upon with caution since he had been unable to examine the brain:
Well, I would say in this case that the issues relate to how you interpret the anatomical findings. So it is the shaken baby debate. But the other series of issues relate to what role does a pathologist have when giving a pathological opinion where you have when you don't where you don't essentially have the brain.
So you don't have the evidence through which pathologists usually use to make opinions.
Dr. Pollanen: Testimony at Goudge Inquiry, Fresh Evidence Materials, p. 70, Tab 8, 107/10-20
Commissioner Goudge addressed the controversy surrounding the Shaken Baby Syndrome and paediatric head injury, and called for a review of previous baby shaking cases in Ontario in which criminal convictions had resulted. He wrote:
The evolution in forensic pathology in this area has three components. First, the predominant view is no longer that the triad on its own is diagnostic of [shaken baby syndrome]. Instead, the issue is fraught with controversy. Some still say it can be. Others say it can never be. The conservative view is to say that one must look not just to the triad but to all the circumstances, acknowledging that a diagnosis of the cause of death may often be difficult, leaving the death as "undetermined".
Second, the predominant view now is that short falls can cause fatal injury, although rarely. Fifteen years ago, the mainstream view was that they never could.
Third, most pathologists agree that this area of their specialty has become much more explicitly controversial than it was in the early or mid 1990s.
Recommendation 143 of Justice Goudge's Report reads:
The significant evolution in paediatric forensic pathology relating to shaken baby syndrome and paediatric head injuries warrants a review of certain past cases because of the concern that, in light of the change in knowledge, there may have been convictions that should now be seen as miscarriages of justice.
Goudge Inquiry Report, Fresh Evidence Materials, pp. 77, 82, Tab 10, pp. 528, 533
2. Expert Reports on Dustin’s Case Post-Goudge
Since the Goudge Inquiry, the Appellant and Respondent have retained experts to review Dustin’s case.
(a) The Respondent’s Experts
The Respondent retained Dr. David Ramsay, a neuropathologist at the University Hospital in London, Ontario and further retained Dr. Michelle Shouldice, a pediatric clinician, at the Hospital for Sick Children.
(i) Dr. Ramsay
In a report dated October 13, 2009, Dr. Ramsay advises on the consequences of the failure to properly fix the brain, including that the severity of the brain swelling, which itself can lead to retinal hemorrhages, could not then and cannot now be determined. He also points out that a microscopic examination of Dustin’s central nervous system could not and cannot be done, an examination which may have established or eliminated natural causes associated with severe brain disease.
Report of Dr. Ramsay, Oct. 13/09, Fresh Evidence Materials, pp. 85-86, Tab 11, pp. 2-3
Dr. Ramsay considers Dr. Smith’s opinions as to the cause of death as reasonable for their time:
Dr. Smith’s Opinions were reasonable given the state of scientific knowledge at the time
· in the 1990s, in an infant of Dustin’s age, the combination of diffuse brain injury, subdural bleeding and retinal hemorrhages was considered to be virtually diagnostic of an inflicted head injury.
· The deficiencies in the autopsy appear to have been eclipsed by the presence of what was regarded as the pathogonomic (i.e., ‘decisively characteristic’) findings of an inflicted head injury.
Dr. Ramsay believes that such opinions are no longer scientifically reasonable “given the current state of knowledge”. He provides three illustrations of what could have caused Dustin’s death:
• that Dustin was struck, or shaken, or both.
• that Dustin had a heart attack. In this regard, Dr. Ramsay wrote:
While he was out with his father, Dustin experienced an idiopathic cardiorespiratory arrest of uncertain duration, analogous, for example, to the sudden death infant syndrome. His subsequent resuscitation re-established blood flow to the brain, which was severely injured because of lack of oxygen during the arrest (hypoxic injury). The brain then became so swollen as a consequence of the hypoxic injury that secondary retinal hemorrhages occurred. The blood vessels in the dura, also injured by the lack of oxygen, ruptured and caused bleeding under the dura.
In a subsequent meeting with the Respondent, Dr. Ramsay advised that this type of Acute Life Threatening Event (ALTE), similar to SIDS, can occur in infants up to a “few” months old.
• that Dustin died from a blood clot in the brain. In this regard, Dr. Ramsay noted Dr. Pearse’s radiology report, and wrote:
The description in the CT report of blood clots in the sinuses suggests that a ‘spontaneous’ sinus thrombosis occurred. The abrupt occlusion of a cerebral sinus may cause a cardiorespiratory arrest. The effects of such an arrest on the brain are described in the previous subsection. The extent of the subdural bleeding was exacerbated by the occlusion of the sinuses.
In his later meeting with the Respondent, Dr. Ramsay titled this cause as Dural Venus Sinus Thrombosis (DVST). He advises that DVST in children is usually related to some form of infection, mild or otherwise. It can also result from dehydration. In addition, some children have an inherited predisposition to spontaneous blood clotting.
Report of Dr. Ramsay, Oct. 13/09, Fresh Evidence Materials, p. 87, Tab 11, pp. 2-3
Memo of Feb. 5/10 meeting with Dr. Ramsay, Fresh Evidence Materials, pp. 89, 92, Tab 12, pp. 3-4
(ii) Dr. Shouldice
In her report, Dr. Shouldice notes the current debate in the medical community “regarding whether shaking alone can generate sufficient force to cause intracranial bleeding or whether impact is required.” She is of the view:
... that there is evidence to indicate that application of force during shaking of an infant and/or blunt trauma can result in subdural hemorrhages.
Based on her views, Dr. Shouldice concludes that Dustin was likely a victim of traumatic head injury. She writes:
Based upon the information available for review, there does not appear to be a medical disorder which would explain the findings of subdural and retinal hemorrhages in Dustin’s case, although bleeding disorders and metabolic disorders could not be completely excluded. Dustin at 2 months of age would have been developmentally immobile and incapable of generating significant force on his own to cause the documented bleeding and there was no history of accidental injury provided in the documentation provided. The subdural and retinal hemorrhages in Dustin’s case cannot be explained by birth injury. It is my opinion that the most likely cause of the subdural and retinal hemorrhages in Dustin’s case is traumatic head injury. The cerebral edema (brain swelling) documented in Dustin’s case may have resulted from traumatic injury and/or pneumonia with hypoxia (reduced oxygenation of the brain).
Dr. Shouldice does not mention Dr. Ramsay’s alternative hypotheses for Dustin’s head injuries, presumably because they require knowledge of the disciplines of forensic pathology and neuropathology. So Dr. Shouldice’s opinions should be viewed with considerable caution.
Report of Dr. Shouldice, Sept. 14/09, Fresh Evidence Materials, p. 121, Tab 14
(b) The Appellant’s Experts
The Appellant retained three experts to review the case:
• Dr. Chris Van Ee, an expert in bio-mechanical engineering from Michigan. Dr. Van Ee reviewed the Appellant’s case and a second case, that of Dinesh Kumar, in a single report.
• Dr. Jan Leestma, a neuropathologist from Chicago.
• Dr. Waney Squier, a forensic neuropathologist, a consultant neuropathologist to the Oxford Radcliffe Hospital and an Honourary Clinical lecturer at Oxford University.
(i) Dr. Van Ee
Dr. Van Ee’s expertise lies in the evaluation of traumatic head injury risk for different traumatic exposures to head injury. He explains in his report the application of biomechanical expertise to head injury issues:
Angular Acceleration and Head Injury
The science of biomechanics has been used extensively to understand the mechanisms of head injury and develop injury prevention strategies. As in the case of inanimate structures, traumatic head injury usually results from some part of the head being moved relative to another part. If the skull is compressed, stretched, or otherwise distorted, fracture and/or suture separation can occur. As the skull is compressed, stretched, and/or distorted, the underlying brain and vascular tissues also undergo movement and distortion. This will lead to injury of the tissues if the distortions are of sufficient magnitude. The relationships between movement or distortion of the head and associated head injuries is the focus of head injury biomechanics.
Angular acceleration or rotational acceleration is the term used to describe the rate of change of the rotational motion of an object. Linear acceleration, often referred to in g-force terms, refers to how quickly the speed of an object changes as it moves in a straight line, whereas angular acceleration refers to how quickly an object begins to rotate (positive angular acceleration) or ceases to rotate (angular deceleration). Holbourn (1943), a research physicist in the University Department of Surgery in Oxford, UK, is generally credited as being the first researcher to cite angular acceleration as a causative factor for intracranial injury. Holbourn hypothesized that if forces cause a sudden change in head rotation, the brain will lag behind the skull motion resulting in the stretching of the brain and surrounding tissues.
Dr. Van Ee’s expertise does not enable him to provide a cause of death for Dustin, but he was able to provide an opinion on whether shaking likely causes injuries of the type that Dustin had.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, p. 178, Tab 18, p. 245
In his report, Dr. Van Ee explained that severe rotational acceleration/deceleration forces can cause subdural bleeding. This had been demonstrated in bio-mechanical experiments on animals and cadavers, and in documented accidental injuries in humans:
The ability to quantify the angular acceleration of the head and thus measure the head traumatic exposure allows bio-mechanical engineers to make assessments of head injury risk. As the angular acceleration increases, the risk for injury increases.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, p. 179, Tab 18
Dr. Van Ee reported that science does not support the hypothesis of the Shaken Baby Syndrome for two reasons:
(a) a human being is unlikely to have sufficient strength to cause fatal head injuries in a normal baby by shaking alone,
(b) vigorous shaking of a baby would generally result in trauma to the spine and neck areas, injuries that have not generally been observed in alleged SBS cases.
Dr. Van Ee wrote:
Abusive Shaking
Based on a review of the current scientific data, the hypothesis that shaking without impact is likely to result in injurious angular acceleration/deceleration cannot be scientifically supported. After conducting an empirical research study into these issues, Duhaime et al. wrote in 1987:
“It was concluded that severe head injuries commonly diagnosed as shaking injuries require impact to occur and that shaking alone in an otherwise normal baby is unlikely to cause the shaken baby syndrome.”
This opinion remains valid today. There are medical review articles and hypotheses that contradict it; however, no reliable scientific data has been documented that refutes Duhaime et al.’s findings. In fact, further research since 1987 has bolstered the science that shaking alone is unlikely to result in angular accelerations consistent with subdural haematoma and diffuse axonal injury (Prange et al. 2003). Instead, vigorous abusive shaking of a child without impact could result in an upper cervical spinal or cord injury and gripping style chest injuries. (original emphasis)
With reference to Dustin’s case (and particularly the allegations referenced at his guilty plea), Dr. Van Ee wrote:
In the Brant case, there was a suggestion that Dustin’s head could have experienced some physical trauma if he fell/was dropped during a scuffle between Mr. Brant and Ms. Farrell. If this happened, it could have been a factor in Dustin’s subsequent medical condition, but there is insufficient history to determine whether this occurred.
Dr. Van Ee then concluded:
In light of all the above, in my opinion there is no evidence that ... Dustin Brant’s injuries were caused by shaking on single or multiple occasions. While bio-mechanics cannot rule out that [his] injuries were the result of an abusive scenario, there is no bio-mechanical evidence of this.
Report of Dr. Van Ee, May 25/10, Fresh Evidence Materials, pp. 180, 183, 184, Tab 18
(ii) Dr. Leestma and Dr. Squier
Dr. Leestma, the author of the substantial textbook Forensic Neuropathology, was once a proponent of the Shaken Baby Syndrome hypothesis but later came to realize that it was a theory not supported by science. In the second edition of his textbook, he writes:
The problem of analysis of potential or suspected child abuse fatalities, especially in younger children, is a very difficult task, having to deal with a commonly embedded mindset that holds that certain findings rarely or never occur outside the environment of abuse and have considerable discriminatory potential to rule out accidental injuries, medical conditions, or combinations in favor of abuse. Virtually all the hallowed tenets of SBS have been challenged on the basis of scientific principles and have been found wanting or wrong. Does this criticism mean that there is no such thing as injury in connection with shaking (in the absence of impact)? Not at all. It means that given the best information that is currently available, it appears that shaking forces that a human can achieve, without an impact, do not apparently and predictably cause brain injuries but could cause cervical spinal injuries, which are uncommonly observed. It also means that it is not known if there are some infants who might suffer intracranial injuries from shaking because there is some underlying disease process or condition that lowers the injury threshold for them as compared with normal babies. This latter question has not been addressed in a systematic way and must remain open.
The job of the forensic pathologist of trying to figure out what happened to a dead child is not easy. There are many possibilities of etiology in what is nearly always a multifactorial problem. Given these complexities, like it or not, clearcut interpretations in a situation where there are no forthcoming witnesses, no independent physical evidence, differences in professional opinions, and meagre knowledge about many aspects of the problem are frequently not possible. When an interpretation is given, the answers must be scientifica1ly supportable, not to the standard of “more likely than not” but to a much higher standard, akin to that demanded in the best and most critical scientific disciplines. This standard is required because the results of an analysis may have profound consequences to an individual accused of harming the child, perhaps not very different from the basis for and consequences of the amputation of a limb or embarkation upon a highly risky medical treatment. All of these decisions must be based on the best evidence available and not upon dogma or prejudice.
Furthermore, it is becoming increasingly apparent that infants may present with what at first impression may appear to be traumatic injuries (subdural haematoma, cerebral edema, retinal haemorrhages, skeletal or skull fractures, coma, and apnea) but which may be caused by or contributed to by previously unsuspected inherited conditions (hemoglobinopathies, disorders of amino acid metabolism, coagulopathies, etc.), vitamin K deficiency, vitamin D deficiency and rickets, brittle bone diseases, unsuspected birth injuries, arachnoid cysts and fluid collections, and many other conditions that may be uncommon to rare. Rarity of a condition in a general population is not a disqualification for the etiological importance of that condition against the context of alleged or possible abuse, because by the selection process that operates, bringing an infant to a hospital emergency room or an autopsy service removes this child from population statistics. Thus, even uncommon and rare conditions become less so in the context of the evaluation of child abuse and should engender caution.
Leestma, Forensic Neuropathology, 2nd Ed. 2009, Ch. 7: “Child Abuse: Neuropathology Perspectives” at pp. 606-607 (filed as a separate document)
See Tuerkheimer: “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts” (2009) 87 Wash. Univ. L.R. 1
The reports of Dr. Leestma and Dr. Squier share common themes between themselves and with Dr. Ramsay’s report. All three reports suggest possible accidental causes for Dustin’s death that accord with the evidence. Dr. Leestma summarized the situation best:
Dr. Smith concluded that “in the absence of a credible explanation, the injury(s) must be regarded as non-accidental.”
There are “credible explanations” for Dustin’s death. The recent medical history of the child, his recent immunizations, the findings of papilledema, the radiological findings of possible sagittal venous sinus thrombosis, and the lack of any external injury to the head, all should have played a role in determining the cause of Dustin’s death. The loss of vital tissue samples (dura and brain) ought to have had a huge impact on Dr. Smith’s certainty in his diagnosis of non-accidental trauma. Dr. Smith’s opinions hold little or no veracity.
Report of Dr. Leestma, May 18/10, Fresh Evidence Materials, p. 155, Tab 17, p. 8
A combination of bronchiopneumonia and aspiration
Dr. Leestma and Dr. Squier are both of the opinion that bronchiopneumonia9 and aspiration, independently or in combination, could have caused Dustin’s death. Dr. Squier notes the clinical and pathological evidence that exists in Dustin’s case for choking and aspiration, and that it had been “the working diagnosis” at the Belleville Hospital. She advises:
There are cases described in the literature of babies who have choked and presented with subdural and retinal hemorrhages, or the triad.
Dr. Leestma writes that the cardio-pulmonary arrest that may have resulted from Dustin’s upper respiratory tract infection, and aspiration during his collapse, would “have mimicked what [Dr. Smith and others] regard as the “shaken baby syndrome”.” This is very like Dr. Ramsay’s second cause of death scenario, and takes the case back to the opinion of the much-maligned Dr. Nag as to cause of death at the original autopsy.
Report of Dr. Squier,May 6/10, Fresh Evidence Materials, pp. 136-137, Tab 16, pp. 11-12
Report of Dr. Leestma, May 18/10, Fresh Evidence Materials, p. 152, Tab 17
Dr. Leestma also raises the spectre of the Friday immunization having been the cause, or a contributing cause of death. He writes:
When Dustin was immunized on November 13, he had an upper respiratory infection. The Centre for Disease Control recommend caution when immunizing young infants who have a “moderate to severe acute illness, without fever”. The consequences of immunization reactions have been known for many years. They can include seizures, encephalopathy, and death. In the United States, a program of “vaccine adverse events reporting system” - - VAERS has been put into place to track immunization-related adverse events. The occurrence of retinal hemorrhages and subdural hematoma as a complication from immunization has been raised. This child may have suffered from complications of immunization.
Report of Dr. Leestma, May 18/10, Fresh Evidence Materials, p. 151, Tab 17
Report of Dr. Squier, May 6/10, Fresh Evidence Materials, Tab 16
Venous Sinus Thrombosis
Dural Venous Sinus Thrombosis (DVST) per Dr. Ramsay, or Cerebral Venus Thrombosis (CVT) per Dr. Leestma and Dr. Squier, is suggested as a possible cause of Dustin’s death by Dr. Leestma, Dr. Squier and Dr. Ramsay, likely in combination with his respiratory infection. Dr. Leestma writes:
Cerebral venous thrombosis as a cause of subdural hemorrhage and brain swelling is relevant in Dustin’s case. The CT scan report (of Dr. Pearse) specifically notes abnormalities in two venous sinuses (the sigmoid sinus and the superior sagittal sinus). Thrombosis of these venous channels can lead to cerebral edema, cerebral hemorrhage, subdural and subarachnoid hemorrhage. These conditions may occur because blood is entering the brain but is unable to drain to veins appropriately. Thrombosis can produce focal hemorrhage and/or brain damage. Thrombosis is often associated with fever and dehydration brought on by poor feeding, vomiting and/or diarrhea from any cause. Dustin was unwell and had been vomiting, a known precondition for cerebral venous thrombosis with or without laboratory evidence of serious coagulopathy.
. . . .
The clotting prevents venous blood drainage from the brain into the general circulation leading to congestion of veins, leakage of blood from the distended veins and capillaries into the brain, dura, and subarachnoid space. Cerebral edema and increased intracranial pressure may result that may not be appreciated clinically. Seizures may also result. Dr. Nag does not seem to have inspected or taken samples from the venous sinuses that appeared thrombosed in the CT scans. This could have been done once the skull was opened and the brain removed. During the intracranial examination of a child who has had a respiratory infection, it is best practice to open the paranasal sinuses and mastoid to determine whether they were infected. Sinus infection is another major cause for cerebral venous sinus thrombosis. It is evident from the reports and records that these examinations were not done.
. . . .
Conclusions: Dustin Brant likely died from natural causes that include bronchopneumonia-bronchiolitis and aspiration causing respiratory failure. In addition, he had an acute subdural hematoma with no evidence or history of head impact. He had radiological findings suggesting thrombosis of a sigmoid venous sinus and posterior sagittal sinus. This condition may have been the cause of the intracranial problems: cerebral edema; subdural and subarachnoid hemorrhage; increased intracranial pressure. The increased intracranial pressure came from several causes, both acute and chronic. The respiratory compromise likely resulted in hypoxia and ischemia to the brain and cerebral edema. The child had increased intracranial pressure from several causes, both acute and chronic.
The diagnosis of SBS has no scientific basis. The presence of retinal hemorrhages does not support a conclusion of shaking or inflicted injury.
Dr. Squier also relates Dustin’s medical condition to possible CVT. She writes:
The classical teaching of Virchow is that venous thrombosis is due to either stasis of flow in the vessel, hypercoagulable state or endothelial damage. The aetiology includes sepsis, dehydration, trauma, clotting abnormalities and, in neonates, hypoxic-ischaemic injury.
Sepsis
Infectious causes for CVT are common. Dustin has a risk factor, he was diagnosed with a respiratory infection a few days before his collapse. Bronchopneumonia was diagnosed at autopsy.
. . . .
As the dura and sinuses were not sampled, it is unknown how long the thrombosis may have been present. The possibility that Dustin had developed CVT during the days prior to collapse and that this led to a seizure and collapse must be given serious consideration.
Report of Dr. Leestma, May 18/10, Fresh Evidence Materials, pp. 152, 154, 155, Tab 17
Report of Dr. Squier, May 6/10, Fresh Evidence Materials, pp. 135-136, Tab 16
B. THE LAW
The Appellant submits that his affidavit and the affidavit of Brian Snell, barrister and solicitor, should be admitted on appeal to explain why he entered his guilty plea. The Appellant further submits that the new expert evidence should be admitted as fresh evidence.
1. The Guilty Plea
The Appellant’s guilty plea, to be valid, must have been voluntary, unequivocal and informed. The Appellant’s plea met these pre-requisites – he entered a voluntary and unequivocal guilty plea, and understood the charge and the consequences of his plea.
At the time of the Appellant’s plea in 1995, Dr. Smith had a powerful reputation in his field, among his peers, and in the criminal justice system. He was Canada’s most frequently consulted pediatric pathologist. Mr. Graydon, his trial counsel, told the Appellant that Dr. Smith was the God of his profession. Dr. Smith’s evidence, if accepted, was almost bound to lead to the Appellant’s conviction for manslaughter.
Dr. Smith’s reputation is now in tatters. His opinions no longer command respect. In 2001, he was removed by the Chief Coroner from the roster of forensic pathologists permitted to conduct autopsies in cases of suspicious deaths. In 2008, the Goudge Report drew damning conclusions about his work, his ethics and his honesty. On February 1, 2011, the Ontario College of Physicians and Surgeons revoked his licence to practice medicine.
Goudge Report, Vol. 2,Fresh Evidence Materials, pp. 74-75, Tab 10, pp. 189-199
There can be no doubt that the Appellant was under a multitude of pressures when he entered his plea:
• He was facing a conviction for manslaughter and would, if convicted, have likely received a substantial penitentiary sentence.
• He had watched Dr. Smith testify at his preliminary hearing, and give his unqualified opinion that Dustin was the victim of baby shaking or blunt trauma.
• He also heard other doctors testify at his preliminary hearing that Dustin had been shaken to death.
• He knew that, if Dustin was a victim of a homicide, only he could be the culprit. He never tried to suggest that Dustin’s mother did anything to their son.
• His own counsel was urging him to accept the plea offer. The Appellant explains in his affidavit:
I met with Mr. Graydon at his office several times after I was charged. I always maintained my innocence, and he was very supportive. He told me that Dr. Smith was “The King” of his field, and challenging his conclusions would be next to impossible. He told me that Dr. Smith believed Dustin exhibited the “classic symptoms of Shaken Baby Syndrome”, and that Dr. Smith’s conclusions about the timing of Dustin’s injuries meant I was the only person who could have caused them. Mr. Graydon told me that the science behind Dr. Smith’s conclusions was irrefutable. He said we would need to find evidence that somebody else had caused Dustin’s injuries. He asked me many times if I could think of anybody else who had been with Dustin in the days before his death. I could only say Mary, Samantha and I had been with him in those days. I was certain that neither Mary nor Samantha had done anything to Dustin, which only left me.
• Mr. Graydon, wisely, warned him that his criminal record would harm his cause when he came to testify in his own defence.
• The Appellant’s girlfriend became pregnant shortly before he entered the plea.
• The facts of the plea were negotiated by his counsel such as to avoid a suggestion that he intentionally harmed Dustin.
• The sentence that counsel agreed to suggest to the trial judge in the form of a joint submission was in the range of six to nine months imprisonment.
Affidavit of the Appellant, Mar. 25/11, Fresh Evidence Materials, Tab 19, para. 16
The Appellant always maintained that he did nothing to hurt his son. But the pressures on him to plead guilty were overwhelming. In Hanemaayer, Rosenberg J.A. spoke of the “terrible dilemma” faced by Mr. Hanemaayer when he pleaded guilty to a crime that he did not commit. In 1995, the Appellant faced an equally terrible dilemma. As this Court explained in Hanemaayer and Kumar, a court of appeal retains a discretion to set aside a guilty plea by receiving fresh evidence to explain the circumstances that led to the plea if the new evidence demonstrates a miscarriage of justice occurred, even though the plea itself met the traditional tests for a voluntary plea.
R. v. Hanemaayer (2008), 234 C.C.C. (3d) 3 (Ont. C.A.) para. 18
R. v. Kumar 2011 ONCA 120
Did the Facts Agreed to on the Guilty Plea Disclose an Offence?
It is questionable whether the facts read in and admitted on the guilty plea disclosed the offence of aggravated assault.
Crown and defence counsel agreed on a plea that would incorporate the idea that Dustin’s injuries occurred during the argument between the Appellant and Mary Farrell that occurred the evening before Dustin died. The Crown told the Court that Dustin “was shaken as a result of [the altercation] and subsequent to that died by – as a result of the subdural hematomas”. However, Mr. Graydon was under instructions from the Appellant not to admit that he injured Dustin intentionally. This led Mr. Graydon to tell the Court, in a statement that was internally contradictory:
Inadvertently, if you will, but to meet the standards of aggravated assault as now defined by The Criminal Code, we accept there was an unlawful act but the parties engaged in a brief struggle for the boy and it was very brief and one of them fell down with the boy. It was during this struggle that the incident must have happened....
The offence of aggravated assault requires a full mens rea and the circumstances related by Mr. Graydon, which amounted to accidentally causing injury, do not suffice. The manner of the plea and the facts provided to the Court to support it reflected the desire of the trial Crown and defence counsel to compromise the facts in order to bring the case to a mutually acceptable result.
See R. v. Adgey (1973), 13 C.C.C. (2d) 177 (S.C.C.)
2. The Fresh Evidence
Dr. Smith attributed Dustin’s death to non-accidental injury, either through severe shaking or by means of blunt trauma. His qualification that death was caused by non-accidental injury “in the absence of a credible explanation” was of no assistance to the Appellant because, unless he was able to challenge the scientific basis for Dr. Smith’s diagnoses, he had no credible explanation.10 Dr. Smith’s opinions, especially insofar as his shaking diagnosis was concerned, which were at the root of the Appellant’s plea to aggravated assault, were supported by Dr. Pearse, Dr. Padfield and, to a degree, Dr. Bechard.
Dr. Smith’s views, shared by clinicians, were in vogue in the mid-1990s. As Dr. Leestma explains in his text, Shaken Baby Syndrome and the triad were believed in at that time even though it was not evidence-based science. Since then, experts in biomechanical engineering have challenged the “science”and, using an evidence-based approach, demonstrated that a human being having the strength to shake a baby and cause fatal subdural haemorrhage is an unlikely occurrence, and that the symptoms of the triad must have alternative explanations. These experts have also shown that shaking a baby in the manner hypothesized by proponents of SBS would likely cause neck and spinal damage, and leave visible fingermarks where the assailant grasped the baby as he/she shook it. No observations of this nature were made at Dustin’s autopsy (although admittedly they were not specifically looked for).
Biomechanical research, and research in other disciplines including forensic pathology, neuropathology and opthamology, has left forensic pathologists, forensic neuropathologists, clinicians and opthamologists in a divided state. Some believe that SBS (or a re-labelling of it) is a credible hypothesis if the triad is present. Some believe that SBS is an unproven hypothesis which runs contrary to the science. Some straddle the gap between these views. In the Goudge Report, the Commissioner wrote:
... one of the deepest controversies surrounding pediatric forensic pathology concerns shaken baby syndrome and, more generally, the cause and mechanism of head injuries. As pathology has evolved, controversies remain and indeed have grown. Forensic pathologists find themselves situated at different places along a spectrum of views on what can and cannot be said with confidence about these issues.
The Commissioner continued:
... the predominant view is no longer that the triad on its own is diagnostic of SBS. Instead, the issue is fraught with controversy. Some still say it can be. Others say it can never be. The conservative view is to say that one must look not just to the triad but to all the circumstances, acknowledging that a diagnosis of the cause of death may often be difficult, leaving the death as “undetermined.”
The Commissioner recommended that a review of, inter alia, shaken baby cases be conducted to isolate those that raised “significant concern that the conviction was potentially wrongful”.
Goudge Report, Vol. 3, Fresh Evidence Materials, pp. 76-82, Tab 10, pp. 527-533
The Commissioner made two observations of particular relevance to the Appellant’s case:
• First, he suggested that the review should not exclude cases in which a guilty plea had been entered:
A number of the cases examined at this Inquiry involved guilty pleas. Most of the convicted parties now challenge their convictions, arguing that their guilty pleas were induced by various factors, including the serious consequences of potentially being convicted of murder charges and the acknowledged difficulties in challenging Dr. Smith’s opinions. Without commenting on the merits of any individual claims, I am satisfied, based on the evidence at this Inquiry, that cases should not be excluded from the review only because an accused pleaded guilty.
• Second, he noted that in some cases additional evidence such as “a wide array of serious injuries” to the deceased could render any controversy about a particular case “irrelevant”. In the Appellant’s case, there was no evidence, other than the triad symptoms, that could be used to suggest that Dustin’s death was non-accidental.
Goudge Report Vol. 3, Fresh Evidence Materials, pp. 81-82, Tab 10, pp. 532-533
The fresh evidence of Dr. Van Ee, Dr. Leestma, Dr. Squier, Dr. Ramsay and Dr. Whitwell undermines the conclusions of Dr. Smith. Whereas Dr. Smith allowed for no viable exception for Dustin’s death being the result of non-accidental injury, the fresh evidence suggests otherwise. These four neuropathologists and one biomechanical engineer challenge the historical claim that the existence of the triad amounts to virtual proof that shaking was the cause of death. As well, all four neuropathologists make the point that the loss of Dustin’s brain, such that there are no slides or sections of the brain for them to examine, has compromised their ability to properly investigate the case to determine whether an accidental cause for Dustin’s death can be established. As Dr. Leestma says in his report:
Regrettably, the absence of proper examination of documentation of pathological processes, the failure to consider important clinical and pathological findings, and the mishandling and misplacement of vital specimens in this case, cripples a thorough and proper analysis Dustin’s death. A complete forensic and legal analysis of this case is fatally flawed.
Report of Dr. Leestma, May 18/10, Fresh Evidence Materials, p. 155, Tab 17, p. 8
The fresh evidence also takes matters an important step further. Three neuropathologists of repute are essentially ad idem in their opinions on the case. While none of them can eliminate shaking as a possible cause of death, all independently put forward an alternative cause, or causes, of death that take into account autopsy and radiographic findings that Dr. Smith either discounted (erroneously in the case of pneumonia and aspiration) or ignored (in the case of VST). These findings should have been considered – they present an evidence-based cause of death that makes use of Dr. Nag’s autopsy findings and Dr. Pearse’s radiography observations. Dr. Shouldice’s opinion is largely irrelevant since she does not have the expertise to consider these alternative causes of death – indeed, a reading of her opinion suggests that she still believes Dustin’s head injuries were most likely caused by shaking because the only alternatives that she can come up with are either unlikely or can be eliminated entirely. Actual affirmative proof of an accidental cause of death like that provided by the four neuropathologists is unavailable due to the improper storage of the brain – but the Appellant should not have to pay a price for this. In light of the fresh evidence, it can be stated with confidence that a father (or other caregiver) would not be charged today if the circumstances surrounding Dustin’s death were to recur and the evidence now available was assembled.
The Court should also consider the circumstantial evidence surrounding Dustin’s death all of which points to the Appellant’s likely innocence:
• It seems unlikely that the Appellant would viciously assault Dustin and then immediately place him in a stroller and take him and Samantha for a walk.
• Microscopic examination of sections of Dustin’s lungs showed that he had broncho-pneumonia for some time before his death.
• There was substantial evidence that Dustin aspirated around the time that he suffered his fatal injuries. The testimony of the two ladies in the restaurant and of the paramedics is highly significant in this regard.
• Mary Farrell saw Dustin within a half an hour of his death. He was not in any visible distress.
• If the Appellant shook Dustin to death, he must have done it after he left the house with Dustin and Samantha because Mary Farrell was still home when he left. This seems most unlikely.
• The Appellant’s finding Dustin in extremis was witnessed by Scott Maracle, Cst. Ling, Donna Summers and Daphne Maracle. They all described circumstances that presented a compelling picture of a father who was shocked and devastated when he found his son lifeless in his stroller.
• The Appellant has always maintained his innocence even, as his own counsel made clear, in the course of entering his guilty plea.
The clinical history and the circumstantial evidence are, to use the words of Gage L.J. in the comparable English case of Harris, “significant and important”. Gage L.J. said:
At the outset of this judgment we have set out the clinical history. In summary, Harris was described as a careful and caring mother. She called out Dr Barber late at night because of her concerns for Patrick. Dr Barber described her as being calm and controlled at that time. The prosecution's case at trial was that in the interval between Dr Barber leaving the house and 2.30am when Harris telephoned the emergency services she must have violently and unlawfully shaken Patrick. In our judgment this history combined with the absence of findings of bruises to any part of the head, face or body; and the absence of fractures or any other sign apart from the triad of injuries, does not fit easily with the Crown's case of an unlawful assault based on the triad of injuries, itself a hypothesis.
In the Appellant’s case, the clinical history suggests that he was a caring father who was truthful and consistent about the events on the day Dustin died. As well, it is an unlikely coincidence that, even though Dustin’s state of health provided an explanation for his death, nevertheless he was killed as a result of his father’s violent acts. And a claim that the Appellant was responsible for Dustin’s death rests on the controversial and unproven hypothesis of baby shaking and the triad.
R. v. Harris et al, [2005] EWCA Crim. 1980
CONCLUSION
As in Kumar, despite the Appellant’s plea of guilty, this Court can intervene in his case and, in the interests of justice, admit the fresh evidence, set aside the guilty plea, and enter a verdict of acquittal, on the grounds that the fresh evidence establishes a miscarriage of justice occurred. The fresh evidence meets the Palmer tests and explains why the Appellant pleaded guilty to the crime of aggravated assault. An acquittal is the appropriate remedy because the fresh evidence is such that this Court can be satisfied, to use Doherty J.A.’s words in Maciel, “that the appellant is innocent.” The evidence establishes that Dustin likely died of natural causes while in the care of the Appellant.
PART V
ORDER REQUESTED
It is respectfully submitted that the fresh evidence should be admitted, the guilty plea set aside and a verdict of acquittal entered."
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 found 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;
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