PUBLISHER'S NOTE: Nota Bene: Here is the link to the very important Ontario Court of Appeal decision in the Jennifer Gaskin case - which hopefully will help put an end to shaken baby syndrome prosecution in Canada - and now joins landmark decisions in other jurisdictions (featured in this Blog) which have recognized SBS as BS! (And can be found in this Blog); As set out at the outset of the decision: " This is another in the sad litany of cases of wrongful convictions based on the discredited “shaken baby syndrome” as the cause of a child’s death brought about, in part, by unreliable expert evidence. Although this was not one of disgraced pathologist Dr. Charles Smith’s, this case took the same flawed approach to the applicable forensic science. This court has set aside convictions in many such cases including R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425; R. v. Sherret-Robinson, 2009 ONCA 886; R. v. C.M., 2010 ONCA 690; R. v. C.F., 2010 ONCA 691; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369; R. v. Marquardt, 2011 ONCA 281; R. v. Brant, 2011 ONCA 362; R. v. Shepherd, 2016 ONCA 188; R. v. Blackett, 2018 ONCA 119; and R. v. Doyle, 2023 ONCA 427, 428 C.C.C. (3d) 293.
Harold Levy: Publisher: The Charles Smith Blog;
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QUOTE OF THE DAY: "One of Gaskin's (Innocence Canada) lawyers, James Lockyer, said the court referring to shaken baby syndrome as discredited science "was really a giant leap forward in the jurisprudence" and will make it easier to argue future cases on the issue. "It was an important day. It may be the beginning of the end of shaken baby syndrome, at least in Ontario, potentially in Canada," he said outside the courthouse. It took a while for Gaskin's challenge to move forward in part because her team was "waiting for the science to change," and because the experts retained to review her case were busy, Lockyer said. At one point, Gaskin moved to a different city without telling her lawyer her new address or phone number, forcing them to deploy a private investigator to find her, he said." (Jennifer Gaskin was also represented on the case by Toronto Lawyer Jack Gemmell. HL);
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PASSAGE OF THE DAY: "Gaskin's case is "another in the sad litany of cases of wrongful convictions based on the discredited 'shaken baby syndrome' as the cause of a child's death brought about, in part, by unreliable expert evidence," the Appeal Court said in its ruling. "The fresh evidence shows that Ms. Gaskin's conviction is unsustainable. She is the victim of a miscarriage of justice," Justice Peter Lauwers said. "As this court has stated in similar cases, it bears repeating that it is profoundly regrettable that, because of what has been shown to be flawed pathological evidence, Ms. Gaskin was wrongly convicted."
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PASSAGE TWO OF THE DAY: 'Mother a 'victim of a miscarriage of justice,' judge says.'..."Gaskin's case is "another in the sad litany of cases of wrongful convictions based on the discredited 'shaken baby syndrome' as the cause of a child's death brought about, in part, by unreliable expert evidence," the Appeal Court said in its ruling. "The fresh evidence shows that Ms. Gaskin's conviction is unsustainable. She is the victim of a miscarriage of justice," Justice Peter Lauwers said. "As this court has stated in similar cases, it bears repeating that it is profoundly regrettable that, because of what has been shown to be flawed pathological evidence, Ms. Gaskin was wrongly convicted." Gaskin's case is "another in the sad litany of cases of wrongful convictions based on the discredited 'shaken baby syndrome' as the cause of a child's death brought about, in part, by unreliable expert evidence," the Appeal Court said in its ruling."
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PASSAGE THREE OF THE DAY: "Gaskin was convicted in 2002 after two medical experts testified the child had died as a result of shaken baby syndrome. Significant concerns about that medical evidence emerged years later after a coroner's review found major flaws in the work of Dr. Charles Smith, who conducted more than 1,000 child autopsies during his tenure as the head forensic pathologist at the Hospital for Sick Children in Toronto. Significant concerns about that medical evidence emerged after a coroner's review found major flaws in the work of Dr. Charles Smith, who conducted more than 1,000 child autopsies during his tenure as the head forensic pathologist at the Hospital for Sick Children in Toronto. (Yan Theoret/CBC) That led the Ontario government to launch an inquiry into pediatric forensic pathology, then a review of shaken-baby cases from the mid-1980s to the mid-2000s. Joeseph's case was eventually examined by an international panel of medical experts. The panel found there was uncertainty regarding the cause of Joeseph's death and the timing of his injuries, court heard. "The fresh evidence shows that Ms. Gaskin's conviction is unsustainable. She is the victim of a miscarriage of justice," Justice Peter Lauwers said. "As this court has stated in similar cases, it bears repeating that it is profoundly regrettable that, because of what has been shown to be flawed pathological evidence, Ms. Gaskin was wrongly convicted."
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SUB-HEADING: "Experts said Jennifer Gaskin's son died of shaken baby syndrome, but new research disputes finding,"
SUB-HEADING: "Jennifer Gaskin was convicted in 2002 in the death of her 2 1/2-month-old son Joeseph after two medical experts testified the child had died as a result of shaken baby syndrome. She was acquitted Tuesday amid new expert testimony."
SUB-HEADING: "Jennifer Gaskin was convicted in 2002 in the death of her 2 1/2-month-old son Joeseph after two medical experts testified the child had died as a result of shaken baby syndrome. She was acquitted Tuesday amid new expert testimony."
GIST: "An Ontario woman sobbed in court Tuesday as she was acquitted in the death of her infant son after more than two decades labelled as his killer.
Jennifer Gaskin pulled her mother into a long and tearful hug after Ontario's top court found that she had been wrongfully convicted of manslaughter in the death of her 2 1/2-month-old son Joeseph based on now-discredited science.
On her other side stood her daughter, with whom Gaskin was reunited a day earlier for the first time since they were separated by child welfare services a day after Joeseph's funeral.
Outside the downtown Toronto courthouse, Gaskin said she finally felt free after decades branded as a monster.
"Now that this is over, I'm hoping that I won't feel like people still look at me that way, because I won't look at myself that way," she said. "Now I'm just going to live my best life."
Though it took a long time, the court eventually "made it right," she said.
On her other side stood her daughter, with whom Gaskin was reunited a day earlier for the first time since they were separated by child welfare services a day after Joeseph's funeral.
Outside the downtown Toronto courthouse, Gaskin said she finally felt free after decades branded as a monster.
"Now that this is over, I'm hoping that I won't feel like people still look at me that way, because I won't look at myself that way," she said. "Now I'm just going to live my best life."
Though it took a long time, the court eventually "made it right," she said.
Mother a 'victim of a miscarriage of justice,' judge says
Gaskin's case is "another in the sad litany of cases of wrongful convictions based on the discredited 'shaken baby syndrome' as the cause of a child's death brought about, in part, by unreliable expert evidence," the Appeal Court said in its ruling.
"The fresh evidence shows that Ms. Gaskin's conviction is unsustainable. She is the victim of a miscarriage of justice," Justice Peter Lauwers said.
"As this court has stated in similar cases, it bears repeating that it is profoundly regrettable that, because of what has been shown to be flawed pathological evidence, Ms. Gaskin was wrongly convicted."
One of Gaskin's lawyers, James Lockyer, said the court referring to shaken baby syndrome as discredited science "was really a giant leap forward in the jurisprudence" and will make it easier to argue future cases on the issue.
"It was an important day. It may be the beginning of the end of shaken baby syndrome, at least in Ontario, potentially in Canada," he said outside the courthouse.
It took a while for Gaskin's challenge to move forward in part because her team was "waiting for the science to change," and because the experts retained to review her case were busy, Lockyer said. At one point, Gaskin moved to a different city without telling her lawyer her new address or phone number, forcing them to deploy a private investigator to find her, he said.
Shaken-baby syndrome 'junk science,' lawyer says
Lockyer said he doesn't know how many other shaken-baby cases there may be, but Innocence Canada, a national organization that aims to help clear people wrongfully convicted of crimes, is working on "more than one."
"It was a hypothesis that was used frequently in courtrooms and it wasn't properly refuted by the defence and people got convicted because of shaken baby syndrome when it never really had any validity," he said, calling it "junk science."
Gaskin was convicted in 2002 after two medical experts testified the child had died as a result of shaken baby syndrome.
Significant concerns about that medical evidence emerged years later after a coroner's review found major flaws in the work of Dr. Charles Smith, who conducted more than 1,000 child autopsies during his tenure as the head forensic pathologist at the Hospital for Sick Children in Toronto.
Significant concerns about that medical evidence emerged after a coroner's review found major flaws in the work of Dr. Charles Smith, who conducted more than 1,000 child autopsies during his tenure as the head forensic pathologist at the Hospital for Sick Children in Toronto. (Yan Theoret/CBC)
That led the Ontario government to launch an inquiry into pediatric forensic pathology, then a review of shaken-baby cases from the mid-1980s to the mid-2000s. Joeseph's case was eventually examined by an international panel of medical experts.
The panel found there was uncertainty regarding the cause of Joeseph's death and the timing of his injuries, court heard. His head injuries had been mischaracterized as bruising when they were in fact infarcts, or strokes, and it wasn't clear whether they had caused the boy's death, the panel found.
Gaskin's legal team later retained three more experts to look over the file.
Court heard the three experts couldn't rule out the possibility of an inflicted injury, but found Joeseph — a premature baby who spent the first two months of his life in hospital — could also have died from sudden unexpected infant death, previously known as sudden infant death syndrome.
Crown offers 'deepest sympathies' after acquittal
The Crown agreed that the new findings should be admitted as fresh evidence and Gaskin should be acquitted, offering her its "deepest sympathies."
"As of today, the original expert evidence supporting the conviction of the appellant at trial has been wholly undermined and placed in grave doubt," the Crown said in its written submissions.
"The investigation of infant death is complex, involving forensic examination and external and internal dissections — none of which were available at the time of the appellant's conviction."
Gaskin, who served 18 months of her nearly two-year sentence in prison, laid out the impact of her conviction in an affidavit that was read out in court.
"As I have always said, I did nothing to cause Joeseph's death, yet I have been branded as a killer for all these years," she said.
"I could never grieve for Joeseph properly. I lost my other two children ... I did not see them grow up and that has hurt a lot. For 20 years, I missed them and wondered how they were."
Gaskin had not yet been convicted when her children, a daughter roughly a year older than Joeseph and a son born while she was on bail, were taken by child welfare services, she said outside court Tuesday. She didn't have the chance to hold her son after he was born, she said.
They got in touch recently through social media and Gaskin met her daughter Monday at the hotel where they were both staying, she said. Her son was set to attend court as well but fell ill and had to turn back, court heard.
While nothing can make up for the time she lost with her children, Gaskin said she looks forward to bonding with them from now on.""
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. 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. Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog. FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."Lawyer Radha Natarajan: Executive Director: New England Innocence Project; FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true;
