RICHARD BRANT: CHARLES SMITH CASE: HIS OWN WORDS; AFFIDAVIT FILED IN THE ONTARIO COURT OF APPEAL;

"This affidavit describes the events leading up to Dustin’s death, and the reasons why I decided to plead guilty to aggravated assault. I did nothing to cause Dustin’s death and I still grieve for him. I never did anything to hurt my son. My decision to plead guilty was the hardest decision of my life.........

"In May, 2007, I was contacted by James Lockyer from the Association in Defence of the Wrongly Convicted (AIDWYC), who told me about the ongoing review of Dr. Smith’s cases. He said Dustin’s case was one of the ones that had been reviewed. I had not heard anything about the controversy surrounding Dr. Smith until then, so it came as a surprise. Mr. Lockyer sent me a copy of Dr. Whitwell’s report in Dustin’s death. Suddenly, my vindication was possible and the truth about Dustin’s death might come out.

In June, 2007, I flew to Toronto from New Brunswick and met with both Justice Goudge and Mr. Lockyer. In August, I was convicted in New Brunswick of robbery. I did not see any coverage of the Goudge Inquiry in the local newspapers, but I intend to read the Goudge report itself when I am released from prison.

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."

RICHARD BRANT; 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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"I, RICHARD BRANT, of the City of Moncton, in the Province of New Brunswick, hereby make oath and say as follows," the affidavit begins.:

1. "On April 21, 1995, I pleaded guilty to aggravated assault before Mr. Justice Byers in the Ontario Court (General Division) in Belleville as a result of the death of my two-month old son Dustin and was sentenced to six months imprisonment," it continues.

I had originally been charged in Dustin’s death with manslaughter and failing to provide the necessaries of life. At the conclusion of my preliminary hearing I was committed for trial on the manslaughter count and discharged on the court of failing to provide the necessaries of life. This affidavit describes the events leading up to Dustin’s death, and the reasons why I decided to plead guilty to aggravated assault. I did nothing to cause Dustin’s death and I still grieve for him. I never did anything to hurt my son. My decision to plead guilty was the hardest decision of my life.

2. I am 38 years old, and was born on July 24, 1972. I am a Mohawk Indian, and grew up on a
reserve in Shannonville, Ontario, just outside of Belleville. At the time of Dustin’s death I lived in Belleville. I was not working at the time. My life has not been without its troubles and I have acquired a criminal record of some substance.

3. I moved to New Brunswick in 2000, and was employed as a truck driver. I am married and have two daughters, aged 13 and 9. My nine year old daughter, Megan, lives with my common-law wife, Cynthia at our home in Saint-Louis-de-Kent, and my thirteen year old daughter Cynthia lives with my mother in Shannonville, Ontario. Although I speak to Cynthia frequently, I do not see her often because of the distance between us.

4. On August 20, 2007, I was convicted of robbery in Moncton and sentenced to four years imprisonment. As I sign this affidavit, I am in the penitentiary in Renous after my parole on this charge was suspended. I am hoping that I will be re-released by the time my appeal is heard on May 4, 2011.

The History of the Proceedings Which are the Subject of this Application

5. Dustin Brant was born to my girlfriend Mary Farrell on September 9, 1992, and was our (and my) first biological child. I remember the day he was born – I was so proud to be a father. He was a healthy baby, and was released from the hospital five days after his birth. We were living at our home in Belleville, Ontario. I showed Dustin off to everybody I knew, and had dreams of a long and happy life for him.

6. When Dustin came home from the hospital, he had trouble breastfeeding so we bottle-fed him instead. He appeared to be developing well. On Friday, November 13, 1992, Mary and I took him to Dr. Hipwell, our family doctor, for his DTP, HIB and OPV immunizations. He had been congested before the appointment, and the doctor told us he may have a mild upper respiratory tract infection. That night, Mary thought his breathing sounded strange, and we were worried that he had a fever. Samantha was also sick with the flu, and spent much of the weekend vomiting. Dustin’s condition remained stable over the weekend.

7. On November 16, 1992, I was at home alone with Dustin while Mary took Samantha to her mother’s house for a few hours. When they returned, Mary and I started arguing about how long she had been gone. While we were arguing, Dustin was on the couch where we often let him sleep. At one point, I had to hold onto Mary to prevent her from hitting me. Mary decided to stay the night at her friend Sherry’s house with Samantha. Dustin stayed home with me. I fed him around 10:00 that night, and again around 2:00 in the morning when he woke up. He did not fall back asleep right away, so I played with him for about an hour. Once he fell back asleep, he slept through the rest of the night.

8. The next morning Dustin woke up around 6:00, and I fed him again. He seemed to be better. I fed him again at about 10:00 a.m. and he threw up a little of it after I burped him. I thought little of it since he had been sick for a few days and Samantha had been vomiting over the weekend.

9. Mary and Samantha came home around this time, and we argued again. I told her I was thinking about ending our relationship. We decided it would be best to give each other some space. I dressed Dustin in his snowsuit, put him in his stroller, covered it with a rain protector, and left with him and Samantha for a walk. Mary was still at home when we left.

10. What happened next still seems surreal, and is painful to think about. We were walking along Moira Street, heading towards the Riverside Restaurant. I ran into Scott Maracle, a cousin of mine who had never seen Dustin. I lifted the rain guard to show him Dustin and was horrified to see Dustin had thick red foam around his nose. I could not tell whether he was breathing. I picked him up, wiped his nose and tried to arouse him. He was lifeless, and I ran into the Riverside Restaurant yelling for somebody to call an ambulance. I remember a lady took Dustin from me and put him on a table. She and another lady did CPR on him until the ambulance arrived. I sat down at the table in shock. Dustin had seemed fine when we left the house, and now he was unconscious. I remember that with each breath the two ladies gave him, more blood and mucous were coming from his nose and mouth.

11.Dustin was taken to Belleville General Hospital, and we were told that his prognosis was poor. The hospital staff revived him, but he was on life support. The police spoke to me at the hospital, and I told them what had happened. They asked if they could search our house. I agreed, and went with them to help. Although much of the day is a blur, I clearly remember the officers finding red drops on the kitchen floor and thinking they had found blood. I told them it was probably cough syrup since the children had been sick. Test results later confirmed this. While we were there, Dusting was transferred to Hotel Dieu Hospital in Kingston. Mary and I decided to have him baptized at the hospital, because the doctors told us he was not going to survive. I stood in the hospital room, holding hands with Mary, and we cried. I begged Dustin to survive. He died early in the morning on November 18, 1992.

12. The police investigation into Dustin’s death began immediately. I was told that Dr. Nag, the pathologist who conducted the autopsy, believed that Dustin had died from pneumonia. Her diagnosis made sense to me, because he had been sick before he died. I also knew that doctors at the hospital told the police they suspected that Dustin had been shaken to death. Their theory made no sense to me. I had not shaken or hurt Dustin, and was sure Mary had not either. The police told me from the beginning that they thought I had killed Dustin, and asked Dr. Charles Smith to conduct a review of Dr. Nag’s autopsy. His report took months to come. The media in Belleville covered the case closely, and everybody knew I was a suspect. It was painful to be mourning my son’s death, while at the same time living under a cloud of suspicion.

13. Soon after Dustin’s death, Mary and I separated. Her daughter, Samantha, was placed in the custody of her parents. Mary believed I had nothing to do with Dustin’s death, but our relationship could not handle the tragedy of his passing or the stress of my situation. She remained supportive throughout the criminal proceedings against me. This helped me a lot.

14. Dr. Smith provided his report to the police in April, 1993. Detectives went to Mary’s house and told her Dustin had died from a severe shaking, and that they believed I had done it. On April 22, 1993, I was arrested and charged with manslaughter. I had already spoken to my lawyer, Robert Graydon (now Mr. Justice Graydon of the Ontario Court of Justice), because I knew of the police suspicions. On his advice, I did not say anything to the police when I was arrested. Now, not only had I lost my son, but I was accused of causing his death.

15. I was released on bail the following day. Detective Mailhot testified at my bail hearing, and told the Justice of the Peace that, until they received Dr. Smith’s report, they had had no grounds to charge me. He testified about Dr. Smith’s findings, and explained his opinion that Dustin would have exhibited signs of trauma immediately after he was shaken. I questioned this in my own mind because Dustin had been fine minutes before I found him unconscious outside the restaurant.

16. 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. Charles 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.

17. At my preliminary hearing, I realized how damaging Dr. Smith’s evidence was, and how much trouble I was in. Until then, I had assumed that I could not be convicted since I had not hurt Dustin. After hearing Dr. Smith, I realized I was wrong. After the preliminary hearing, Mr. Graydon told me the Crown was offering me a plea to aggravated assault, for a sentence of six to nine months in jail. He urged me to accept the offer. I remember one meeting with him during which he said he could not live with me being convicted of manslaughter. He explained that, at my trial, I would have to take the stand, and that my credibility would be a big problem because of my criminal record. In the end, it came down to a contest between me with my criminal record, and Dr. Smith with his credentials.

18. Mr. Graydon told me that the Crown would seek a long jail sentence if I was convicted of manslaughter after trial, and that I was likely to receive a sentence of between four and six years. Shortly before I entered the plea, I found out that my girlfriend, Lynne Cote, was pregnant. I knew that if I was convicted of manslaughter, I would not be allowed to see our child and I would lose her too. I did not want to leave Lynne as a single mother, having to raise our daughter on her own.

19. For many months, Mr. Graydon told me it was in my best interests to plead guilty. He said he would tell the Court that Dustin’s injuries had been caused during a struggle with Mary on the Friday evening. I agreed, but insisted that he tell the judge that whatever had happened to Dustin was unintended. He agreed to this, but he also explained that, in order to plead guilty, I had to admit enough facts to make out a criminal offence. I agreed to acknowledge that whatever had caused Dustin’s injuries occurred during my argument with Mary.

20. On April 21, 1995, I pled guilty to aggravated assault before Justice Byers in Belleville. Based on Dr. Smith’s evidence and Mr. Graydon’s advice, I felt I had no other option. On May 19, 1995, I was sentenced to six months in prison. After my sentence was completed I did my best to put this behind me, though the day of Dustin’s death will stay with me forever.

Events Since My Sentencing

21. In May, 2007, I was contacted by James Lockyer from the Association in Defence of the Wrongly Convicted (AIDWYC), who told me about the ongoing review of Dr. Smith’s cases. He said Dustin’s case was one of the ones that had been reviewed. I had not heard anything about the controversy surrounding Dr. Smith until then, so it came as a surprise. Mr. Lockyer sent me a copy of Dr. Whitwell’s report in Dustin’s death. Suddenly, my vindication was possible and the truth about Dustin’s death might come out.

22.In June, 2007, I flew to Toronto from New Brunswick and met with both Justice Goudge and Mr. Lockyer. In August, I was convicted in New Brunswick of robbery. I did not see any coverage of the Goudge Inquiry in the local newspapers, but I intend to read the Goudge report itself when I am released from prison.

23. 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."

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;