W A R N I N G

            The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide:

486.5  (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2)  On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3)  An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4)  An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5)  An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6)  The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7)  In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8)  An order may be subject to any conditions that the judge or justice thinks fit.

(9)   Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.  2005, c. 32, s. 15.

486.6  (1)  Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

            (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.


CITATION: R. v. C.F., 2010 ONCA 691

DATE: 20101020

DOCKET: C49535

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

F. (C.)
 

Appellant

James Lockyer, for the appellant

Alison Wheeler and Jennifer Woollcombe, for the respondent

Heard: October 20, 2010

On appeal from conviction by Justice Harris of the Ontario Court of Justice dated July 6, 1998.

By The Court:

[1]                As in the case of C.M., this appeal originates in the reinvestigation of cases where Dr. Charles Smith had provided opinions as to the cause of death of children.  As with C.M., the opinion given by Dr. Smith in the appellant’s case was one of those identified for review by the Chief Coroner in 2005 and was also reviewed at the Inquiry into Paediatric Forensic Pathology.

[2]               The reviews demonstrated that there was never any reliable pathological evidence to support Dr. Smith’s conclusion that the cause of death of the appellant’s child was asphyxia. In fact, none of the pathologists who gave new opinions on this case were able to offer any definitive opinion on the cause of the child’s death.

[3]               In 2008 this Court granted the appellant an extension of time to appeal her conviction for infanticide. On this appeal, the appellant submits that fresh evidence be admitted, the conviction quashed and a new trial ordered.  The Crown agrees with that disposition. 

[4]               In November 1998, the appellant, then 18 years old, gave birth to a baby girl at her home where she lived with her father and brother.  The infant was either stillborn, or more likely, was born alive and died within minutes of birth.  The body was discovered by police the next day in the appellant’s closet, wrapped in a towel and plastic bag. Seventeen months later, the appellant was charged with infanticide.  The appellant maintained that she did not know she was pregnant and had no recollection of giving birth. In July 1998, she pleaded guilty to infanticide. She received a two month conditional sentence followed by three years of probation. In October 2006, the appellant received a pardon under the Criminal Records Act.

[5]               Dr. M.J. Walsh performed the post-mortem examination on the appellant’s baby on December 1, 1996. He certified the cause of death as “Anoxia in normal, live-born female”. Dr. Walsh, however, then sought a consultation report from Dr. Charles Smith. Without examining the body, Dr. Smith provided his report on January 20, 1997.  He concluded that the cause of death was asphyxia, and “in the absence of an alternative explanation, the death of this baby girl is attributed to infanticide”.

[6]               The appellant retained experienced criminal defence counsel who was familiar with Dr. Smith’s work.  He knew that Dr. Smith was considered the premier paediatric pathologist in Ontario, and likely Canada, and that a legitimate expert in his profession would not be able to undermine his opinions. Given this context, counsel did not feel that devoting the appellant’s funds to retaining a forensic pathologist would be of value.

[7]               The appellant eventually agreed to plead guilty, but refused to plead to something that would indicate that she was aware of the pregnancy or that she wilfully caused the death of the child.  The affidavits of the appellant and her trial counsel explain why she pleaded guilty.  The reasons are similar to those in C.M.’s case.

[8]               As in the case of C.M., the death of the appellant’s child was reviewed by Dr. John Butt as part of the Coroner’s Review.  He concluded that there was limited anatomical information available to conclude the death was asphyxia.  He indicated that the observations made by Dr. Smith were, neither individually or collectively capable of being linked to one pathophysiological process.  Dr. Butt concluded that the autopsy did not provide reasonable and probable grounds to charge the appellant. His conclusions were supported by the other four external reviewing pathologists.

[9]               Dr. Michael Pollanen also reviewed this case.  In his opinion, the child was born alive, but he agrees that the cause of death is unascertained.

[10]          Dr. Geoffrey Machin, an expert retained by the Crown, has offered possible explanations for the death of the infant, other than an intentional act.  However, he too is unable to come to a definitive conclusion.

[11]          In summary, none of the new expert opinions support Dr. Smith`s conclusion, and none of these experts were able to offer any definitive opinion on the cause of death.  As in the case of C.M., Commissioner Goudge was highly critical of the form in which Dr. Smith gave his opinion and his identification of the case as one of infanticide.

[12]          The appellant applies to have the material gathered as part of the coroner’s investigation and the Goudge Inquiry and the other expert opinions obtained since then admitted as fresh evidence.  She also applies to have her affidavit and the affidavit of her trial counsel admitted on appeal to explain why she entered her guilty plea. 

[13]          The Crown fairly concedes that new expert evidence meets the test for fresh evidence.  The Crown also agrees that the affidavits of the appellant and her trial lawyer should be admitted.  Crown counsel acknowledged that Dr. Smith’s highly respected expertise in the area of paediatric forensic pathology, and his opinion that the appellant committed infanticide, created a very powerful reason for the appellant to agree to plead guilty rather than face trial.

[14]          The Crown accepts that there has been a miscarriage of justice, that the fresh evidence justifies setting aside the plea and that the appeal must be allowed.  We agree.

[15]          In the C.M. case, we have addressed the question of setting aside a guilty plea in circumstances such as this.  The appellant’s circumstances are virtually identical to those of C.M. and for similar reasons we agree that the fresh evidence should be admitted, the guilty plea set aside, the appeal allowed, the conviction set aside and a new trial ordered on the charge of infanticide.

[16]          We wish to thank Mr. Lockyer and Ms. Wheeler for their assistance with this very sad and difficult case.  We also wish to acknowledge the suffering that the appellant and her family have endured as a result of the flawed pathology opinion that led to her guilty plea.

[17]          The case for continuing the publication ban is extremely compelling in the unique circumstances of this case and is required to protect the appellant and her family.  Accordingly, the order prohibiting publication of the appellant’s identity and prohibiting publication of information that might result in revealing her identity is continued.  In our view, that would include information identifying the city where the charge was laid.

            Signed:           “M. Rosenberg J.A.”

                                    “E. A. Cronk J.A.”

                                    “G. J. Epstein J.A.”

RELEASED: “MR” October 20, 2010