



Please Note

The President of the panel hearing
    this appeal directs that the non-publication order of Sosna J., prohibiting the
    release of any information that would tend to identify the appellants
    surviving children, shall continue.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.T., 2013 ONCA 476

DATE: 20130716

DOCKET: C51067

Rosenberg, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M. T.

Applicant (Appellant)

Timothy E. Breen for the Appellant

Alison Wheeler for the Respondent

Heard: December 5, 2012

On appeal from the conviction entered on September 3,
    2009 by Justice Michael Brown of the Superior Court of Justice, sitting without
    a jury.

Rosenberg J.A.:

[1]

The appellant, M. T., pleaded guilty to a charge of assault causing
    bodily harm and not guilty to a charge of manslaughter in respect of the death
    of his son P. T. He appeals from his conviction for manslaughter. The sole
    ground of appeal is that the proceedings should have been stayed as an abuse of
    process.

[2]

The appellants application to stay proceedings originated in a history
    that goes back to the appellants first trial on charges relating to the death
    of his son. His conviction in 1998 for second degree murder, aggravated assault
    and assault causing bodily harm was ultimately set aside by the Supreme Court
    of Canada, in reasons reported at
R. v. M.T.,
2007 SCC 49, [2007] 3
    S.C.R. 453. A new trial was ordered on the basis of fresh evidence discrediting
    the opinion of forensic pathologist Dr. Charles Smith, whose evidence had been
    essential to the prosecutions case. As many in this province know, Dr. Smith
    was implicated in a number of wrongful convictions. A commission of inquiry
    into the pediatric forensic pathology system in Ontario was inspired by
    concerns with Dr. Smiths forensic work and was led by Commissioner Stephen T.
    Goudge of this court (Goudge Inquiry).

[3]

The appellants stay application was based on the fresh evidence filed
    at the Supreme Court of Canada and the findings of Commissioner Goudge in
The
    Report of the Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto:
    Queens Printer for Ontario, 2008) (Goudge Report). The appellant alleged
    that the Office of the Chief Coroner for Ontario (OCCO) covered up Dr.
    Smiths incompetence and misconduct, thus frustrating the appellants attempt
    in 2004 to successfully appeal his conviction for the murder of his young son.
    It was only in 2007, when fresh evidence was placed before the Supreme Court of
    Canada following a proper re-investigation of the appellants case, that the
    true facts about Dr. Smith and the role that the OCCO played were revealed. In
    the meantime, the appellant had spent many years in the penitentiary convicted
    of murder.

[4]

For the following reasons, I would dismiss the appeal.

A.

THE FACTS

[5]

The facts and, especially, the chronology of events are extremely important
    to understanding the appellants argument. The recent procedural history in the
    Superior Court of Justice should also be noted.

(1)

The Original
    Investigation

[6]

On May 29, 1993, emergency personnel responded to a 911 call at the
    appellants home, where they found the appellants son P. T. on a bed without
    vital signs. P. T. was taken to hospital, where an emergency physician made a
    provisional diagnosis of Sudden Infant Death Syndrome (SIDS). Dr. David Chan
    performed an autopsy and found an old bruise to the left temple. He found no
    significant external marks of violence and, in particular, no skull fractures.
    He agreed with the diagnosis of SIDS. P. T. was just over 8 months old at the
    time of his death.

[7]

Approximately one year later, the appellants second son, M. T. Jr., was
    brought to hospital with a fractured left femur. He was one month old. The
    authorities suspected child abuse, and, as a result, re-opened the
    investigation into P. T.s death the year before.

[8]

On July 20, 1994, a second autopsy was performed on P. T.s remains.
    This autopsy was conducted by Dr. Charles Smith. While Dr. Smith was not able
    to identify a cause of death, he reported that he observed petechial
    haemorrhage consistent with an asphyxia type of death. Dr. Smith also found bone
    fractures that made him suspect non-accidental injury. The appellant was
    charged with second degree murder, aggravated assault and assault causing
    bodily harm. His wife was also charged with several offences.

(2)

The First Trial

[9]

At the appellants trial, the Crown relied upon circumstantial and
    expert evidence. Family members, neighbours and co-workers testified to the
    appellants impatience with, and rough handling of, P. T. They also testified
    to the inadequate care provided to P. T. and to injuries they observed. An
    expert in child abuse and pediatric radiology gave opinion evidence that P. T.s
    past injuries were the result of abuse.

[10]

Dr.
    Smiths testimony was based on Dr. Chans observations from the original
    autopsy. Dr. Smith testified that there was a recent skull fracture to the left
    parietal bone that may have been lethal and could have occurred within a couple
    of days to 10 minutes before death. Both the bruising that Dr. Chan observed to
    the left temple and the skull fracture could have been caused by a single
    event. As well, Dr. Smith testified that the deceaseds brain weight as
    recorded by Dr. Chan was 30 to 35% heavier than normal. The only possible
    conclusion that Dr. Smith could draw from this was that the babys brain was
    severely swollen. This was indicative of an impact to the head that, in turn,
    was consistent with a recent skull fracture. Dr. Smith also testified that the
    deceaseds dura adhered to the skull to a greater degree than normal, which may
    have indicated a previous injury. Finally, he found microscopic petechial
    haemorrhages in the strap muscle of the deceaseds neck, which could have been
    post-mortem artefacts from the autopsy itself, but were more likely caused by
    ante-mortem neck compression.

[11]

Based
    on the above, Dr. Smith provided two explanations as to possible causes of
    death. The first was a blunt force injury to the head, possibly from a fist
    that caused the bruising to the temple, the skull fracture and the brain
    swelling. The second was asphyxiation caused by either neck compression (manual
    strangulation) or smothering, which could also be consistent with the head
    injury. But for the abnormal brain weight, he would have thought asphyxia the
    more likely cause.

[12]

Dr.
    Smith testified that asphyxia could be caused by plastic film from a dry
    cleaning bag over the deceaseds face or someone pinching the infants nose and
    holding his lips together. He also gave his opinion as to how the head injury
    and smothering could be linked. The head injury could have made the baby very
    irritable and caused him to cry. And the reality is that there are caregivers
    around who attempt to silence irritable children by holding a pillow over their
    face or by flipping them over and forcing their face into a pillow or mattress
    to keep them quiet, and in doing so asphyxiate them. It was also his opinion
    that the asphyxia was a prolonged episode. He testified as follows:

If the cerebral edema is correct and was not caused by some
    antecedent event but was caused by the asphyxia, then the asphyxia had to be a
    prolonged episode. It had to be something which was either incomplete
    obstruction such as a pillow or holding the babys face onto a mattress in
    which they are struggling and you dont get good airway obstruction, or its an
    intermittent phenomenon. The baby is asphyxiated, they are let go, they begin
    to breathe again, theyre asphyxiated some more in a process that occurs over
    ten or fifteen minutes, or half an hour, or an hour. Something like that.

[13]

On
    June 12, 1998, the appellant was found guilty of second degree murder,
    aggravated assault and assault causing bodily harm. He was sentenced to life
    imprisonment for the murder, without eligibility for parole for 15 years, and to
    7 years imprisonment concurrent for the assault convictions. His wife was
    convicted of criminal negligence causing death and failure to provide
    necessaries of life, and was sentenced to 5 years imprisonment.

[14]

The
    appellant appealed his conviction to this court. That appeal was dismissed on
    October 28, 2004:
R. v. M.T.
(2005), 190 C.C.C. (3d) 199. On June 9,
    2005, the appellant filed an application for leave to appeal to the Supreme
    Court of Canada. This application was granted on October 20, 2005:
R. v.
    M.T.
, [2005] S.C.C.A. No. 287. On March 27, 2007, the Supreme Court of
    Canada granted the appellants motion to adduce fresh evidence, in particular
    expert reports from two forensic pathologists who discredited the opinion given
    by Dr. Smith in the first trial. The appeal was heard on October 12, 2007, and
    on November 8, 2007 the Supreme Court of Canada allowed the appeal and ordered
    a new trial:
R. v. M.T.,
2007 SCC 49, [2007] 3 S.C.R. 453.

[15]

The
    chronology of events leading up to the dismissal of his appeal by this court
    more than six years after the conviction, and continuing through to the appeal
    to the Supreme Court of Canada, is crucial to understanding the appellants
    argument on the present appeal. Much of this chronology is set out in the
    Goudge Report. In particular, it will be important to understand how concerns
    about Dr. Smiths conduct and evidence in criminal cases came to light, and how
    the OCCO responded to those concerns. And, while other cases in which Dr.
    Smiths evidence was challenged are not directly relevant to this appeal, they
    form an important part of the context. It will also be important to observe how
    the growing concerns with Dr. Smiths work and the OCCOs response to these
    concerns bore on the appellants appeal from his conviction, and influenced the
    actions of both prosecution authorities and defence counsel as more information
    came to be known.

(3)

The Events Leading to
    the First Appeal in the Court of Appeal

Early concerns about the competence
    and objectivity of Dr. Charles Smith

[16]

From
    1981 to 2005, Dr. Charles Smith worked as a pediatric pathologist at Torontos
    Hospital for Sick Children. Although he had no formal training or certification
    in forensic pathology, he became involved in forensic pediatric cases.

[17]

In
    1992, Dr. Smith was appointed director of the newly established Ontario
    Pediatric Forensic Pathology Unit (OPFPU). The OPFPU was established pursuant
    to an agreement between the Hospital for Sick Children (Sick Kids) and the
    Ministry of the Solicitor General, and was composed of pathologists from Sick Kids
    who did work for the OCCO. The reason for his appointment appeared to be
    unrelated to his qualifications for the role  indeed, he had no specific
    training in forensic pathology at this time  but, rather, because of his
    interest in a role no one else wanted. As Commissioner Goudge observed in his
    report, Dr. Smith quickly came to dominate pediatric forensic pathology in
    Ontario. During this time, Dr. Smiths superiors within the state hierarchy
    were Dr. James Young, the Chief Coroner for Ontario, and Dr. James Cairns, the
    Deputy Chief Coroner for Ontario.

[18]

At
    least as early as 1991, concerns were voiced with the work of Dr. Smith in
    forensic cases.  Commissioner Goudge observed that perhaps the first sign of
    concern with Dr. Smiths work in forensic pediatric pathology arose in 1991,
    when Justice Patrick Dunn of the Ontario Court (Provincial Division) acquitted
    S.M. of charges in respect of the death of S.M.s child on the basis that Dr.
    Smith lacked objectivity, failed to investigate thoroughly and neglected to
    keep adequate records. Such concerns with Dr. Smiths work would continue over
    the next 14 years. An apt summary is provided by Commissioner Goudge, at p. 24
    of the Goudge Report:

Throughout the 1990s, coroners, police officers, and Crown
    counsel brought a litany of concerns about Dr. Smiths work practices to the
    attention of the OCCO. People complained repeatedly about Dr. Smiths failure
    to produce reports in a timely fashion; his unresponsiveness; his carelessness;
    and the inconsistencies between his written reports, his pre-trial comments,
    and his sworn evidence. In many instances, nothing was done to respond to these
    concerns. When the OCCO did respond, it was mainly through Dr. Cairns informal
    verbal and undocumented requests to Dr. Smith that he try to improve, all of
    which were inadequate and had no effect.

[19]

In
    January of 2001, the Crown dropped charges in two cases when it learned that
    several well-respected experts disagreed with Dr. Smiths opinion in those cases.
    This event attracted media attention to Smiths work. As a result, on or around
    January 25, 2001, Dr. Young and Dr. Cairns raised their concerns about this
    media attention with Dr. Smith, and gave him the option of resigning. They were
    evidently concerned about public confidence in the OCCO. Dr. Young told some reporters
    that Dr. Smith was no longer performing autopsies for the OCCO, and that there
    would be an external review of his work in several cases. It was Dr. Smith who
    requested this review.

[20]

At
    this time, the appellants appeal had already been filed, although it had not
    yet been perfected. On January 31, 2001, counsel acting for the appellant on
    the appeal, knowing that cause of death would be one of the main issues on the
    appeal and having become aware that charges in two cases in which Dr. Smith had
    provided an opinion as to cause of death had been dropped, wrote Crown counsel
    handling the appeal and requested disclosure of any existing or pending
    inquiries, investigations or reviews into Dr. Smiths work. Dr. Cairns advised
    Crown counsel that the OCCO was reviewing Dr. Smiths work in the two cases in
    which the charges had been dropped by the Crown. This information was
    communicated to defence counsel in a letter dated February 9, 2001 from Crown
    counsel. Crown counsel stated that a wider review might also be undertaken. Crown
    counsel suggested that defence counsel contact Dr. Cairns for further
    information, but indicated he would also provide further information of which
    he became aware.

[21]

Unbeknownst
    to the Crown or anyone else, only 3 days later, on February 12, 2001, Dr. Young
    stopped any external review of Smiths work. Dr. Young would later explain to the
    Goudge Inquiry that the purpose of the review, as he saw it, was in
    consideration of whether or not to reinstate Dr. Smith. His reason for stopping
    the review was that he had decided not to reinstate Dr. Smith until after the
    resolution of a civil lawsuit brought by an accused in one of the cases that
    was dropped by the Crown. The first public announcement that an independent
    review had been delayed did not come until June of 2001, soon after an article
    in MacLeans magazine questioned Dr. Smiths competence and professionalism.
    The Crown was not told that Dr. Young had cancelled the review, even though the
    OCCO, between January and April 2001, was seeking the assistance of the Crown
    in identifying criminal cases in which Dr. Smith had been involved.

[22]

In
    June 2001, Dr. Smith was reinstated for non-criminal autopsies. No one,
    including the Crown, was informed that Dr. Smith was no longer involved in the
    analysis of criminally suspicious cases.

The review of the appellants case by Dr. Cairns

[23]

Between
    October 1, 2001 and October 19, 2001 there was an exchange of correspondence
    between newly-assigned Crown counsel, defence counsel and Dr. Cairns about the
    existence and scope of any review into Dr. Smiths work. In a letter dated
    October 10, 2001, Crown counsel told defence counsel what Dr. Cairns had told
    her: that not every case Dr. Smith was involved in was being reviewed. However,
    she was prepared to request a review of Dr. Smiths findings in the appellants
    case in order to allay defence counsels concerns. On October 19, 2001, this
    request was made to Dr. Cairns. By letter dated November 16, 2001, Crown
    counsel advised Dr. Cairns that the appellants appeal would be perfected
    shortly.

[24]

A
    further exchange of correspondence took place during February of 2002. In a
    letter dated February 6, 2002, defence counsel asked Crown counsel for an
    independent peer review of Smiths work in the appellants case, and sought disclosure
    of the number of cases that were in fact referred for independent review and
    the opinions of those independent experts. Crown counsel forwarded this letter
    to Dr. Cairns, and asked about the progress of the review.

[25]

Dr.
    Cairns response to this exchange, as communicated by Crown counsel, is very
    important to this appeal. In a letter dated February 18, 2002, Crown counsel
    advised defence counsel of what she had learned from Dr. Cairns. First, that in
    18 of 20 cases that had been reviewed, there was no difference of opinion with
    Dr. Smith. Second, that in the two cases in which there were differences, there
    was no suggestion that Dr. Smiths opinion was based on incompetence or
    negligence; there was simply a difference of opinion on matters on which
    experts might disagree. Crown counsels letter also contained the following:

In fact, it is my understanding from Dr. Cairns that after the
    reviews, Dr. Smith was put back on the autopsy roster in June 2001. As far as
    the Coroners office was concerned, he was competent to conduct any autopsy. It
    was Dr. Smith himself who took steps to remove himself, voluntarily. Dr. Smith,
    in effect, recognized that there would be a challenge to him on each and every
    case. While this challenge might prove unfounded, it would significantly impact
    on the trial process and the efficient use of resources.

[26]

In
    responding to defence counsels question regarding the number of independent
    reviews that had been undertaken, Crown counsel referred to the preliminary
    inquiry in the case of
R. v. Kporwodu,
which is discussed further
    below, and in which Dr. Cairns gave 5 days of testimony about some of Dr.
    Smiths other cases. Crown counsel summarized that evidence, and concluded:
    Dr. Cairns testimony shows that the reviews of Dr. Smith did not find him
    wanting. She went on to say the following of defence counsels attempt to
    pursue the competency of Dr. Smith:

Your attack on Dr. Smiths competence does not appear to be
    founded on any contrary medical opinion, and suggests an opportunistic attempt
    to deflect the spotlight from your client. You have offered no legitimate
    reason to support your request that the Crown invite the Court to set aside the
    jurys verdict and order a retrial in this tragic matter.

[27]

As
    it happens, the Goudge Report makes clear that all three representations made by
    Dr. Cairns, as repeated in Crown counsels letter to the appellants counsel,
    were misleading. First, there was no broad external review of Dr. Smiths work.
    Whatever the scope of the proposed review, it had been halted by February 12,
    2001. What the OCCO did conduct was what Commissioner Goudge described as a
    superficial, internal, mostly paper review of some of Dr. Smiths cases. In
    addition, in June 2001, Dr. Blair Carpenter, the chief of pathology at the
    Childrens Hospital of Eastern Ontario, reviewed six of Dr. Smiths
    non-criminally suspicious files in order to see whether Dr. Smith could return
    to the non-criminal roster. He concluded that Dr. Smiths work on those six
    files did not give rise to any concerns.

[28]

Second,
    there had been no specific finding made that Dr. Smith was neither negligent
    nor incompetent. Third, Dr. Smith had only been returned to the roster of
    pathologists doing non-criminal autopsies.

[29]

Crown
    counsels letter to defence counsel dated February 18, 2002 was copied to Dr.
    Cairns. In addition, Dr. Cairns, in his testimony to the Goudge Inquiry, acknowledged
    that the information provided to Crown counsel and passed on to defence counsel
    was misleading. It is also clear that he knew that Dr. Smith had only been
    reinstated to the non-criminal roster. Nevertheless, he did not correct the
    misstatements.

[30]

In
    July of 2002, another exchange of correspondence took place between the defence,
    the Crown and Dr. Cairns, inquiring about the review into the appellants case
    and the perfection of the appeal. From the defences perspective, it appears
    that the fact that the review results had not been reported was holding up the
    fresh evidence application. On July 15, 2002, Crown counsel requested the
    results of Dr. Cairns review as soon as possible, because the appellants
    matter and the results of the review would be spoken to in court in early
    August.

[31]

On
    August 1, 2002, Crown counsel advised defence counsel that Dr. Cairns had
    completed his review, and had told her that he saw no contradictions
    whatsoever between the opinion of Dr. Smith and those of other experts, and
    that he had no concerns. While the parties were waiting for this opinion to
    be reduced to a report, this court ordered the appellant to confirm his decision
    whether or not to pursue a fresh evidence application by September 13, 2002. Crown
    counsel followed up with Dr. Cairns, seeking his report as soon as possible
    so that the appellant could meet that deadline. Dr. Cairns one-page report was
    eventually sent to Crown counsel on September 27, 2002, and disclosed to
    defence counsel on September 30. In it, Dr. Cairns writes that his review was
    based on the original autopsy report, the second autopsy report prepared by Dr.
    Smith, autopsy autographs, and transcripts of testimony from the appellants
    trial. Crucially, Dr. Cairns report concludes as follows:

The
    result of my review:

I have no concerns regarding the opinion given
    by Dr. Smith and see no reason what so ever [
sic
] for our office or the Crown Attorney to hire another expert.


[32]

On
    October 11, 2002, defence counsel informed Crown counsel that, in light of Dr.
    Cairns report, the appellant would not be adducing fresh evidence.

[33]

As
    it turned out, significant problems with Dr. Cairns report later came to
    light. Commissioner Goudge said this of Dr. Cairns report:

Dr. Cairns was wrong. Once experts reviewed the case, Dr.
    Smiths opinion was sufficiently discredited by other pathology experts that
    the Supreme Court of Canada ordered a new trial for [P.s] parents. As with his
    affidavit in Nicholas case, Dr. Cairns did not have the expertise to provide
    this opinion. A proper review required expertise in forensic pathology.
    Moreover, at the time Dr. Cairns provided this unqualified opinion, he was
    fully apprised of the serious concerns about Dr. Smiths competence, integrity,
    and judgment arising from cases such as Jennas. This incident provides yet
    another example of the importance of experts understanding and respecting the
    limits of their expertise.
As he candidly acknowledged at the Inquiry, Dr.
    Cairns had absolutely no business offering this opinion.
[Emphasis added.]

[34]

In
    the meantime, other events continued to keep Dr. Smiths competency a live concern.
    In late 2002 and into 2003, the
Kporwodu
case was proceeding in the
    Superior Court of Justice. The presiding trial judge, Trafford J., ordered the
    Crown to disclose the OCCO file in Kporwodus case. When the appellants counsel
    learned of the order, he asked for the OCCO file in the appellants case to likewise
    be disclosed. Crown counsel obtained the file from Dr. Cairns and it was
    forwarded to defence counsel. In March 2003, defence counsel asked that the
    appeal be de-listed because of continuing concerns with Dr. Smiths competence
    and objectivity.

[35]

In
    June 2003, Trafford J. stayed the proceedings in
Kporwodu
for
    unreasonable delay. In his reasons, reported at
R. v. A.K.,
[2003] 13
    C.R. (6th) 71 (Ont. S.C.J.), affd (2005) 75 O.R. (3d) 190 (C.A.), Trafford J.
    referred to the independent review of Dr. Smiths cases that the OCCO was meant
    to be conducting, and found that no systematic external review of Dr. Smiths
    forensic work was taking place. Rather, Trafford J. found, at para. 137 of his
    decision:

Dr. Smith's work on criminal cases was reviewed on a
    case-by-case basis only when a Crown Attorney requested such a review. There
    were only a few requests by Crown Attorneys. When such a request was made, Dr.
    Cairns, Dr. Chiasson or Dr. McLellan reviewed the file to see if there were any
    obvious problems with Dr. Smith's work on the case. The Crown Attorney was then
    advised who, if anyone, should be consulted for a further expert opinion. The
    matter was then left with the Crown Attorney, to be handled within his or her
    discretion. If such an expert was retained by the Crown Attorney, any written
    report done by the expert was a report to the Crown Attorney and, generally,
    not to the Chief Coroner.

The appellants
    counsel came to learn that the appellant had been misled about the scope of any
    review into Dr. Smiths work



[36]

In
    August 2003, defence counsel learned that Dr. Smith was not, in fact, doing
    forensic autopsies. He wrote to Crown counsel, asking again whether there was
    going to be an inquiry into Dr. Smiths criminal cases and his competence in
    those cases.

[37]

In
    a letter dated September 15, 2003, based on information from counsel to the
    OCCO, Crown counsel answered defence counsels questions by reference to the
    findings of Trafford J. in
Kporwodu
.

She went on to say that
    beyond a hearing into Dr. Smiths work by the Health Professions Review Board;
    a past hearing into his work by the College of Physicians and Surgeons; and
    individual civil and criminal cases where the issue of Dr. Smiths evidence and
    competence could be dealt with by individual judges, the Coroners Office was
    not aware of any additional inquiry into these matters.

[38]

In
    a letter dated the following day, defence counsel voiced his concern that Dr.
    Cairns was not competent to provide the opinion he did, as he was not a
    pathologist. He asked whether an independent pathologist had ever reviewed the
    appellants case. Crown counsel replied, in part, as follows:

In your letter you suggest that I am in breach of my disclosure
    obligations. Throughout this process I have attempted to respond to your
    concerns. I requested Dr. Cairns to review Dr. Smiths work in this matter in an
    effort to allay any concerns that you might have about the adequacy of Dr.
    Smiths work. I invited you to participate but you chose not to. Dr. Cairns was
    competent to conduct the review that he did. You were aware of the nature of
    the review that I was requesting. Despite invitation you voiced no concern
    whatsoever prior to or during the review.

[39]

The
    next significant correspondence references Crown counsels letter of February
    18, 2002, in which Dr. Cairns had explained the scope of the OCCOs review into
    Dr. Smiths cases. Defence counsels letter to Crown counsel on September 25,
    2003 shows that defence counsel had come to know that the representations in
    the letter of February 18, 2002 were misleading  defence counsel characterized
    them as deliberately so. Among other things, defence counsel alleged that he
    now knew that the independent review had not, in fact, been completed but had
    been suspended; that there had been no review of the appellants case; and that
    Dr. Smith was not doing forensic autopsies. In the letter, defence counsel
    again asked for an independent review.

[40]

Crown
    counsels response the following day stated that defence counsel had been aware
    of the nature of the review conducted by Dr. Cairns, and not only had he not chosen
    to participate in the review but he had not raised any concerns about the
    review.

[41]

In
    January 2004, the parties appeared in this court on a production motion seeking
    materials that had been before Trafford J. in the
Kporwodu
case. In
    dismissing the motion, in reasons reported at
R. v. M.T.
, [2005] 23
    C.R. (6th) 261, this court agreed with Crown counsels submission that the
    appellant had not offered anything to suggest that Dr. Smiths medical opinions
    in his trial were open to legitimate debate. The court wrote, at para. 38:

I am satisfied that absent any basis upon which to doubt Dr.
    Smith's opinion in this case, evidence questioning his competence and
    objectivity in other cases could not possibly affect the verdict in this case
    and, consequently, could not be received as fresh evidence on appeal.

[42]

Despite
    the conclusion reached by this court, correspondence from Crown counsel to
    defence counsel on January 14, 2004 shows that one of the members of the panel
    hearing the production motion suggested that the parties have an expert perform
    a completely independent review of Dr. Smiths findings in the appellants
    case. While the motion was under reserve, and after considerable wrangling over
    who should conduct the review, the parties settled on Dr. Linda Norton of Baylor
    University, in Dallas, Texas.

[43]

The
    record shows several weeks in which there was some apparent difficulty in
    assembling materials to be sent to Dr. Norton. Finally, on May 5, 2004 a letter
    from Crown counsel to defence counsel indicates that Dr. Norton required
    further materials. Supplementing the record provided to Dr. Norton would
    require further time, including time for Dr. Norton to review the materials.
    Defence counsels position on supplementing the record and, if necessary,
    requesting an adjournment was sought. Defence counsels response was sent the
    next day:

Further, to our telephone conversation yesterday and the
    various matters that we discussed, I am confirming that I am not pursuing the
    fresh evidence application as it relates to Dr. Norton. It is with regret that
    I do this but I see no alternative given the time frame involved and my
    clients instructions to me that he cannot stand the emotional impact of
    another delisting.

[44]

Consequently,
    the appeal proceeded before this court without any fresh evidence and was
    dismissed on October 28, 2004, in reasons reported at
R. v. M.T.
(2005),
    190 C.C.C. (3d) 199. As recorded in those reasons, the Crown and defence had both
    relied upon Dr. Smiths opinion to support their positions at trial. The
    Crowns position at trial, set out at para. 84 of the appeal reasons, had been
    that Dr. Smiths evidence could eliminate certain possibilities (such as
    disease and SIDS), and point to head trauma and/or asphyxiation as the most
    likely causes of death. The defence position was summarized in para. 85:

The defence relied on Dr. Smith's evidence to support three
    contentions. First, the defence relied on Dr. Smith's ultimate opinion that the
    cause of death could not be determined. Second, the defence relied on Dr. Smith
    to support the contention that P.T.'s death could not be attributed to any of
    the specific injuries he suffered and, particularly, could not be attributed to
    the skull fracture suffered shortly before his death. Third, the defence relied
    on Dr. Smith to undermine the reliability of any of the observations made by
    Dr. Chan. This was important to the defence because Dr. Smith relied on one of
    those observations, the weight of the brain, in advancing his opinions.

[45]

The
    grounds of appeal were that the trial judge had mischaracterized a portion of
    Dr. Smiths evidence, failed to exclude certain prejudicial evidence given by
    Dr. Smith and failed to summarize some of his evidence that was favourable to
    the defence. The court did not give effect to any of these grounds of appeal.

(4)

The Events Leading to
    the Appeal at the Supreme Court of Canada

[46]

On
    June 7, 2005, Dr. Barry McLellan, the new chief coroner for Ontario, ordered a
    formal review of a number of Dr. Smiths criminally suspicious or homicide
    cases, including the appellants. Dr. Michael Pollanen conducted the review
    into certain aspects of the death of P. T. In a brief report dated August 13,
    2005, Dr. Pollanen confirmed that there were four fractures, one to the right
    humerus (upper arm) and three to the parietal bones of the skull. All four
    fractures had healed. Dr. Pollanen concluded that his review agreed with the
    medical evidence presented at trial. At this time, his objective had been only
    to confirm the medical evidence presented by Dr. Smith at the trial.

[47]

In
    a much fuller report dated October 5, 2006, Dr. Pollanen explained the pathological
    significance of his findings to the cause of death. Those findings may be
    summarized as follows:

·

There was clear and incontrovertible evidence that the deceased
    suffered chronic physical child abuse.

·

There was no definitive evidence of acute fatal injury of the
    head or neck. The recorded brain weight was not a sufficient basis to conclude
    that lethal cerebral edema (swelling of the brain) was present. There was no
    pathological evidence to support mechanical asphyxia as the cause of death.

·

The fracture to the skull, which Dr. Smith had identified as
    having occurred shortly before death, had healed and therefore was not, in and
    of itself, a fatal injury.

·

The cause of death should have been recorded as unascertained.

[48]

Dr.
    Pollanen concluded with the following:

In the case of [P. T.], death occurred after a life of chronic
    physical child abuse, but our medical knowledge of the lethal event is elusive.
    However, this death cannot be regarded as a natural death or a case of sudden
    infant death syndrome (SIDS).

[49]

The
    appellants counsel for his appeal to the Supreme Court of Canada retained Dr. Simon
    Avis to review P. T.s death. His report, dated November 7, 2006, provides
    findings similar to that of Dr. Pollanen. Importantly, Dr. Avis noted that
    while his findings were consistent with Dr. Smiths original autopsy report,
    Dr. Smiths testimony under oath was different:

While superficially it appears that the above conclusions
    confirm the opinion of Dr. Smith as he stated in his autopsy (exhumation)
    report, it is important to compare the opinions in his report with the opinions
    he gave under oath. In his report he clearly stated that the cause of death was
    undetermined, a reasonable pathological conclusion consistent with current
    practice. Under oath he opined that the cause of death was either head injury
    or manual strangulation, based on the same pathological evidence he had used to
    conclude that the cause of death was undetermined. Dr. Smith also contradicted
    his own opinion; for example on page 2212 he stated that it was not possible to
    know exactly how old the visible skull fracture was. While this is true, one
can
exclude a recent
    fracture based on visual examination. On page 2259 he then suggested that the
    fracture was minutes to hours old if it was assumed [P. T.] died of a head
    injury. This is circular logic  the deceased died of a head injury therefore
    the fracture is recent, and we know he died of a head injury because there is a
    recent fracture.
In fact there was no recent skull fracture so my
    conclusions contradict those opinions given by Dr. Smith under oath.
[Emphasis
    added.]


[50]

These
    opinions constituted the fresh evidence on appeal to the Supreme Court of
    Canada. The appeal was heard on October 7, 2007. The Crown agreed that, in
    light of the fresh evidence, the appeal must be allowed. However, it sought to
    have the court substitute a conviction for manslaughter for the murder
    conviction. Alternatively, it sought an order for a new trial on the murder
    charge, and asked that the appeal relating to the assault charges be dismissed.
    The appellant sought an acquittal on the murder charge and a new trial on the
    assault charges.

[51]

The
    Supreme Court rejected both positions. In reasons delivered on November 8,
    2007, the court allowed the appeal and ordered a new trial on all charges. As
    to the murder conviction, the court said the following, at para. 5:

It is conceded by the Crown that the fresh evidence should be
    admitted and that [M. T.]'s conviction on the murder charge cannot stand. With
    respect to that count, however, the Crown urges us to substitute a conviction
    for manslaughter instead of ordering a new trial. The Crown contends that the
    impugned evidence of Dr. Smith could have affected the jury's finding on the
    fault element, or
mens rea
, that distinguishes murder from
    manslaughter, but not on the
actus reus
, or element of causation
    common to both offences. We do not find this submission persuasive. On the
    contrary, we believe that the evidence of Dr. Smith may well have influenced
    the jury's conclusion on
both
essential elements of the murder charge
    -- that Mr. [T.]
caused [P.]s death
and that he did so intentionally.

[52]

But,
    the court also rejected the appellants submission that he should be acquitted
    of murder in light of the fresh evidence. As it said at para. 7:

Both appellants, on the other hand, seek acquittals on the
    counts of murder and criminal negligence causing death, and urge us to order a
    new trial only on the remaining counts.
We are satisfied that acquittals
    would at this stage be inappropriate, since we are not prepared to say that
    there remains no evidence upon which a properly instructed jury, acting
    reasonably, could find the appellants guilty of the homicide-related offences
    of which they were convicted at trial.
[Emphasis added.]

[53]

In
    elaborating why it felt that there should be a new trial on all counts, the
    court, at para. 13, relied also on the following considerations, among others:
    the central importance of Dr. Smiths evidence to the Crowns case at trial;
    the Crowns position throughout the trial as to the relationship between the
    charges; that Dr. Smiths evidence is now conceded to be unreliable; that Dr.
    Smith testified not only as to [P. T.]s cause of death but also as to his
    previous injuries, going to the other counts; and that it was impossible to
    determine the effect that the evidence of Drs. Smith and Chan had on the jurys
    evaluation of both appellants credibility.

[54]

It
    is apparent from the courts reasons, and from the transcript of the oral
    argument, that the appellant did not apply for a stay of proceedings before
    that court.

(5)

Recent Procedural
    History in the Superior Court of Justice

[55]

The
    appellants application for a stay of proceedings was heard by Sosna J. in June
    of 2009. At that time, the appellant was appearing for a second trial on an
    indictment charging second degree murder, aggravated assault and assault
    causing bodily harm. His wife, A. T., also brought an application to stay the
    proceedings against her. She was facing charges of manslaughter, criminal
    negligence causing death and failing to provide the necessaries of life. In
    reasons delivered on July 2, 2009, Sosna J. dismissed the applications.

[56]

On
    September 3, 2009, the appellant appeared before Brown J. on a new indictment
    charging manslaughter and assault causing bodily harm. The charges against A.T.
    were stayed at the request of the prosecution. The appellant pleaded not guilty
    to manslaughter and guilty to assault causing bodily harm. The trial proceeded
    by way of a memorandum of proof, accompanied by various exhibits. The
    appellant acknowledged that those facts were capable of establishing his guilt
    on the charge of manslaughter. The appellant was convicted of both offences.
    The trial judge accepted a joint submission of a suspended sentence and one
    year probation. By that time, the appellant had served almost nine years of the
    life sentence for murder.

[57]

The
    parties agree that it is open to the appellant to appeal his conviction for
    manslaughter pursuant to the replacement indictment on the basis that Sosna J.
    erred in failing to enter a stay of proceedings of the murder charge set out in
    the first indictment.

B.

The Reasons of the Application Judge

[58]

The
    application judge gave lengthy and careful reasons for dismissing the stay application.
    He reviewed the proceedings in the appellants case as well as other cases
    involving Dr. Smith. He noted the role played by the OCCO during the appeal
    process, including the misleading information provided by Dr. Cairns in
    February 2002 (mistakenly referred to as October 2001). The application judge made
    several important findings of fact. The medical evidence provided by Dr. Smith
    at the appellants trial was deliberately calculated and directed to secure
    convictions. The appellant was convicted because the Crown and the jury
    erroneously relied on Dr. Smiths reputation and misguided diagnosis. His
    evidence in this case was not an anomaly, but was consistent with his history
    of securing convictions in suspicious pediatric deaths, notwithstanding medical
    evidence to the contrary. The OCCO sheltered and protected Dr. Smith for the
    sake of preserving the institutional reputation of its organization. Nevertheless,
    there was no misconduct on the part of Crown counsel, either at the trial or
    appellate levels.

[59]

The
    application judge reviewed and applied the law of abuse of process as set out
    in
R. v. Conway
, [1989] 1 S.C.R. 1659 and
Canada (Minister of
    Citizenship and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391. He held that
    the fairness of the new trial for murder would not be compromised because the
    Crown would not rely on Dr. Smiths evidence. Rather, Dr. Pollanen and Dr. Avis
    would give the pathology evidence, and would testify that the cause of death
    could not be determined.

[60]

The
    application judge then asked whether irreparable prejudice would be caused to
    the integrity of the judicial system if the prosecution were to continue. He
    noted that a stay of proceedings is intended as a prospective remedy. It must
    appear that the state misconduct is likely to continue or that carrying the
    prosecution forward will offend societys sense of justice. Only in exceptional
    cases may the past misconduct be so egregious that the mere fact of going
    forward in light of it will be offensive.

[61]

Despite
    finding that the state, through Dr. Smith, had mistreated the applicants and
    observing that the court was greatly disturbed by the stain that Dr. Smith
    and the OCCO had left on the administration of justice, the application judge
    concluded that the past misconduct was not so egregious that a continued
    prosecution would cause irreparable injustice to the judicial systems
    integrity. He observed that the Crown had an evidentiary basis to proceed with
    the prosecution even without medical evidence as to the cause of death.

[62]

The
    application judge then balanced the compelling public interest in having a
    trial on serious criminal allegations involving the death of an infant against
    the gravity of Dr. Smiths misconduct toward the applicants. He was satisfied
    that the communitys sense of fair play and justice would not be offended by a
    new trial.

[63]

The
    application judge also considered the alternative submissions that the
    appellant only be tried on manslaughter or that the Crown be barred from using
    the evidence of Dr. Chan. He rejected both remedies. Given the ultimate outcome
    of the proceedings, the availability of these alternative remedies is not
    relevant to this appeal.

C.

ANALYSIS

(1)

The Standard of
    Review

[64]

The
    appellant submits that the decision of the application judge is entitled to
    deference, and should only be interfered with where there is a legal
    misdirection or the decision is clearly wrong and amounts to an injustice. The
    Crown adds that the misdirection must be either an error of law or a palpable
    and overriding error in the assessment of the facts. I agree with these
    submissions: see
Tobiass
at para. 87 and
R. v. Bellusci,
2012
    SCC 44 at paras. 17-9.

[65]

At
    the same time, this matters recent procedural history complicates the process
    of review. As mentioned earlier in these reasons, the pre-trial application for
    a stay of proceedings dealt with by Sosna J. was in respect of the appellants
    indictment on a charge of murder. Accordingly, the application judge dealt with
    the case on the basis of whether proceeding with a retrial of a murder charge
    would be an abuse of process. However, the appellant has now been found guilty
    of manslaughter as set out in the replacement indictment laid before Brown J.,
    pursuant to a negotiated agreement between the parties. The question therefore
    arises whether, in considering if there was an abuse of process in this case,
    this court should apply the relevant tests to a trial for murder  which was
    the anticipated proceeding before Sosna J.  or a trial for manslaughter. I agree
    with the respondent that this appeal should ask whether proceeding with a
    homicide prosecution was an abuse of process in this case.

[66]

The
    appellant submits that the application judge was clearly wrong. He submits that
    the application judge failed to consider that the appellants conviction for
    murder resulted directly from Dr. Smiths perjury. He also failed to consider
    the consequences that flowed from the murder conviction in terms of the
    appellants treatment in the penitentiary and on appeal. He submits that the
    appellant would have been classified differently if convicted only of manslaughter
    and would have likely obtained bail pending appeal if only convicted of
    manslaughter. He also submits that in measuring the state misconduct, the fact
    that he may have been guilty of crimes involving abuse of the deceased is
    irrelevant.

(2)

The Law of Abuse of
    Process

[67]

Helpful
    summaries of the doctrine of abuse of process are found in the recent decisions
    of
R. v. Nixon
, 2011 SCC 34, 2 S.C.R. 566 and
R. v. Regan
,
    2002 SCC 12, 1 S.C.R. 297.
Those cases identify two categories of abuse
    of process. The first, and more common, category is engaged by prosecutorial
    conduct affecting the fairness of the trial; the second, the residual category,
    is engaged by prosecutorial conduct that contravenes fundamental notions of
    justice and undermines the integrity of the judicial process: see
Nixon
at para. 36.

[68]

In
Regan
, the Supreme Court explained that either category of abuse of
    process requires two criteria to be satisfied before a stay can be imposed.
    First, the applicant must show that the prejudice caused by the abuse will be
    perpetuated by a trial or by its outcome, and second, he must show that no
    other remedy is reasonably capable of removing that prejudice. The court
    explained the rationale for these requirements in the following way, at paras.
    54-56:

The Court's judgment in
Tobiass
, at para. 91,
    emphasized that the first criterion is critically important. It reflects the
    fact that a stay of proceedings is a prospective rather than a retroactive
    remedy. A stay of proceedings does not merely redress a past wrong. It aims to
    prevent the perpetuation of a wrong that, if left alone, will continue to
    trouble the parties and the community as a whole, in the future.

As discussed above, most cases of abuse of process will cause
    prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a
    small residual category of abusive action exists which does not affect trial
    fairness, but still undermines the fundamental justice of the system (
O'Connor
,
    at para. 73). Yet even in these cases, the important prospective nature of the
    stay as a remedy must still be satisfied: "[t]he mere fact that the state
    has treated an individual shabbily in the past is not enough to warrant a stay
    of proceedings" (
Tobiass
, at para. 91). When dealing with an
    abuse which falls into the residual category, generally speaking, a stay of
    proceedings is only appropriate when the abuse is likely to continue or be
    carried forward. Only in "exceptional", "relatively very
    rare" cases will the past misconduct be "so egregious that the mere
    fact of going forward in the light of it will be offensive" (
Tobiass
,
    at para. 91).

Any likelihood of abuse which will continue to manifest itself
    if the proceedings continue then must be considered in relation to possible
    remedies less  drastic than a stay. Once it is determined that the abuse will
    continue to plague the judicial process, and that no remedy other than a stay
    can rectify the problem, a judge may exercise her or his discretion to grant a
    stay.

[69]

The
Regan
court, at para. 57, also instructed that close cases may engage
    a third criterion:

[T]here may still be cases where uncertainty persists about
    whether the abuse is sufficient to warrant the drastic remedy of a stay. In
    such cases, a third criterion is considered. This is the stage where a
    traditional balancing of interests is done: "it will be appropriate to
    balance the interests that would be served by the granting of a stay of proceedings
    against the interest that society has in having a final decision on the
    merits". In these cases, "an egregious act of misconduct could
    [never] be overtaken by some passing public concern [although] ... a compelling
    societal interest in having a full hearing could tip the scales in favour of
    proceeding" (
Tobiass
, at para. 92).

[70]

More
    recently, the Supreme Court of Canada in
Nixon
suggested that the
    balancing of interests is a central concern that defines the concept of abuse
    of process and its remedy. The court reached back to
R. v. Conway
, and pointed out that the
Conway
court, at p. 1667, summarized both abuse of process and the remedy for it in
    these terms:

[W]here the affront to fair play and decency is
    disproportionate to the societal interest in the effective prosecution of
    criminal cases, then the administration of justice is best served by staying
    the proceedings.

The centrality of a balancing exercise is evident in
    this description. In addition, this court in
R. v. Zarinchang
, 2010 ONCA 286, 99 O.R. (3d) 721,
at para. 58,
    held that where it is the residual category that is engaged, a court will
    generally find it necessary to balance the interests called for by the third
    criterion.

[71]

In
    the criminal context, abuse of process is concerned with state action. On this
    appeal, the respondent sought to draw a distinction between Dr. Smith and the
    OCCO on the one hand, and actors connected with the prosecution, such as police
    and Crown counsel, on the other. The respondent submitted that abuse of process
    is only concerned with the conduct of the prosecution, and would not be engaged
    by the perjury or inappropriate conduct of a witness, even if that witness were
    a state actor.

[72]

I
    take Crown counsels point that neither Dr. Smith nor the actors in the OCCO
    were directly part of the prosecution, as such. However, the respondents
    submission fails to sufficiently engage with the role played by the OCCO in the
    investigation of a suspicious death and, thereafter, in the prosecution of an
    accused. The nature of the relationship between Dr. Smith and the OCCO, and
    between these actors and the criminal justice system, is a factor that must be
    considered as an essential aspect of the context in this case.

[73]

Dr.
    Smith was not simply a prosecution witness. He conducted post-mortem
    examinations under a warrant issued pursuant to the
Coroners Act
,
    R.S.O. 1990, c. C.37, at s. 28. Dr. Young and Dr. Cairns oversaw his work; both
    of them, as Chief Coroner and Deputy Chief Coroner for Ontario respectively,
    occupied statutory positions pursuant to ss. 4(1) and (2) of the
Act
.
    The results of Dr. Smiths post-mortem examination would have been reported not
    only to the regional coroner and Chief Coroner, but also to the Crown Attorney:
    s. 28(2). Later, as an expert witness testifying on the pathological evidence
    in this case, Dr. Smith played a critical role in the appellants trial. Finally,
    as we have seen, the conduct of actors at the OCCO became very important to the
    progress of the appeal.

[74]

In
    my view, given the role played by these state actors in this prosecution and in
    the appeal, their conduct can give rise to an abuse of process and, in an
    appropriate case, could result in a stay of proceedings. This is despite the
    fact that on the facts as found by the application judge, and as Mr. Breen
    acknowledged in oral argument, the Crown too was a victim of their actions.

(3)

Application to this
    Case

[75]

The
    appellant does not rest his case on the first category of abuse of process.
    There is no suggestion that the appellant could not have had a fair trial
    either for murder or manslaughter once the accurate pathology evidence, in the
    form of testimony by Dr. Pollanen and Dr. Avis, was put before the trier of
    fact. This case then turns on the second category. I have no difficulty in
    finding that an abuse of process was made out in this case under the residual
    category.

[76]

The
    abuse of process lies in the combined effect of the perjured evidence given by Dr.
    Smith, and the misleading representations made by the OCCO, particularly by Dr.
    Cairns, which delayed the discovery of Dr. Smiths misconduct and risked
    frustrating the appellants appeal to this Court. Such conduct falls easily
    within the description of abuse of process as conduct that contravenes
    fundamental notions of justice and undermines the integrity of the judicial
    process.

[77]

Dr.
    Cairns, in particular, in a misguided effort to protect the integrity of the
    OCCO rather than ensure the proper investigation of pediatric deaths and see that
    justice was done, provided misleading information to Crown counsel and, through
    her, to the appellant. This had the effect of interfering with the appellate
    process. From November 2001 until October 2002, defence counsel had been led to
    believe that there would be, and then that there had been, an independent
    review of Dr. Smiths work in the appellants case, and that the opinion
    provided by Dr. Smith was correct. Most significantly, as a result of the
    opinion given by Dr. Cairns, which it turned out he was not competent to give,
    the defence abandoned its first attempt to adduce fresh evidence in October 11,
    2002.

[78]

The
    issue, therefore, is whether this abuse of process requires a stay of
    proceedings in accordance with the test set out in
Regan
,
Nixon
and
Tobiass
. In this court, the appellant argues that a stay of
    proceedings was the only appropriate remedy because the past misconduct was so
    egregious that the mere fact of going forward in the light of it would be
    offensive: see e.g.
Tobiass
at para. 91. He submits that this is such
    a clear case that it is unnecessary to engage the third criterion, the
    balancing of interests.

[79]

I
    do not agree. Like most cases involving the residual category, uncertainty
    remains in this case after considering whether the prejudice will be perpetuated
    and whether any other remedy is reasonably capable of removing that prejudice.
    I say that for the following reasons.

[80]

Regrettably,
    our courts are not immune from perjury by state actors, as this case shows.
    But, perjury alone, especially when it has been uncovered while the case is
    still in the system, will rarely meet the test for a stay of proceedings. More
    troubling is the impact that Dr. Cairns conduct may have had on the appeal
    proceedings. Nevertheless, his active participation was effectively limited to
    the misleading correspondence of February 18, 2002 and the review performed on
    the appellants file. While it later became clear that he was not qualified to
    perform a pathology review, the record does not disclose that he was aware of
    this at the time. In addition, Dr. Cairns conduct was manifested only for a
    relatively short period of time.

[81]

By
    September 23, 2003, defence counsel was aware that there had been no
    independent review of Dr. Smiths testimony in the appellants case. Defence
    counsel was also aware of concerns about Dr. Smith, as revealed in the
Kporwodu
case. Despite this, the appellant chose not to proceed with any fresh evidence.
    It is possible to view this decision as the result of Dr. Cairns misconduct.
    That is, that because of the delay engendered by Dr. Cairns conduct, the
    appellant was deprived of any realistic opportunity to present fresh evidence
    on his first appeal to this court. However, in my view, this is not borne out
    by the chronology.

[82]

Following
    the motion for production in January 2004, the appellant had the opportunity to
    obtain an independent review at the suggestion of the court that heard the
    production motion. An independent reviewer was selected, and the process was
    initiated. However, the review by Dr. Norton was abandoned by the appellant for
    reasons not attributable to Dr. Cairns conduct, which by then was known. The
    appellant could also have obtained his own expert opinion, as was later done
    prior to the Supreme Court of Canada hearing. Consequently, the application
    judge was not clearly wrong in concluding that the past conduct of state actors
    in this case, while disturbing, was not so egregious that a continued
    prosecution would cause irreparable injustice to the integrity of the judicial
    system.

[83]

In
    the particular circumstances of this case, as egregious as the conduct of Dr.
    Smith and the OCCO was, the prejudice caused by the state misconduct would not necessarily
    be manifested, perpetuated or aggravated through the conduct of the second trial
    or by its outcome. This is undoubtedly a close case. Dr. Smiths perjury in the
    first trial was perpetuated through the first appeal, which was dismissed
    because there was, at the time, no fresh evidence. However, by the time of the
    second trial, the perjury had been uncovered and the jury would have been able
    to reach its verdict by reference to the expert evidence of Dr. Pollanen and
    Dr. Avis.

[84]

Given
    the persisting uncertainty as to the appropriateness of a stay of proceedings
    in this case, it seems to me that the balance of interests favoured proceeding
    with the prosecution. The serious nature of the states misconduct, not only
    through Dr. Smiths perjury, but also the misrepresentations made by the OCCO
    and the failures of oversight documented in the Goudge Report, is an important
    consideration in the balancing of interests. As the application judge said, the
    cost of this history of events was the loss of public confidence both in the
    Coroners Office and the administration of justice.

[85]

However,
    it is necessary to look at the entire context in undertaking the balancing
    exercise. First, the history of this case originates in the exceptional
    misconduct of Dr. Smith. The failures in oversight and the delayed discovery of
    the full scope of Dr. Smiths misconduct had systemic causes. The systemic
    issues have been addressed by the review of the Chief Coroner and the Goudge
    Inquiry, which have restored public confidence both in the system for the
    investigation of pediatric deaths and also in the administration of justice.

[86]

While
    the misconduct of certain state actors amounted to an abuse of process, neither
    the trial Crown nor appellate Crown counsel were implicated in that misconduct.
    In fact, while this case is exceptional, so has been the response of the
    Ministry of the Attorney General. As Dr. Smiths misconduct and that of the
    OCCO was revealed, the Ministry responded to individual cases by consenting to
    the re-opening of cases that had resulted in a miscarriage of justice even
    where many years had elapsed since the prosecution and where the accused had
    originally pleaded guilty.

[87]

Allowing
    the appellant to avoid prosecution for the physical abuse that led to his sons
    death would be a disproportionate response. Dr. Pollanens description of this
    case should be remembered:

In the case of [P. T.], death occurred after a life of chronic
    physical child abuse, but our medical knowledge of the lethal event is elusive.
    However, this death cannot be regarded as a natural death or a case of sudden
    infant death syndrome (SIDS).

As grave as the state misconduct was in this case, the
    balance tips in favour of a trial on the merits. Given the robust state
    response, the continuation of this particular prosecution cannot be seen as
    offensive. Holding a trial for a murder for which an evidentiary foundation
    existed would not amount to condoning the state misconduct in this case, and
    would not be damaging to the administration of justice. I have not been persuaded
    that the application judges conclusion was clearly wrong.

[88]

The
    fact that the appellant had served over 8 years in custody is also obviously an
    important consideration in the balancing of interests. In arguing that a stay
    of proceedings was required in this case, the appellant placed considerable
    emphasis upon
R. v. Taillefer; R. v. Duguay
, 2003 SCC 70, 3 S.C.R. 307, where a stay of
    proceedings was ordered for one of two accused because by the time an appeal on
    the basis of state misconduct was allowed, he had served an amount of time in
    prison similar to the appellant in this case
.

[89]

The
    facts of
Taillefer and Duguay
are complex. The case involved two
    accused, Taillefer and Duguay,  who were both convicted of first degree murder.
    Both appealed to the Quebec Court of Appeal. Taillefers appeal was dismissed.
    Duguays appeal was allowed, and the court ordered a new trial for second
    degree murder. Following the appeal, Duguay pleaded guilty to manslaughter and
    was sentenced to 12 years imprisonment. In the meantime, the Poitras
    Commission
[1]
uncovered wrongdoing on the part of both the police and the Crown in respect of
    Taillefer and Duguays cases, in failing to disclose information that could
    have undermined the credibility of prosecution witnesses, suggested avenues of
    investigation and bolstered the defence of alibi. Taillefer and Duguay appealed
    again to the Court of Appeal, which dismissed their appeals. By the time the appeal
    was allowed by the Supreme Court of Canada, Duguay had served 8 years of his 12
    year sentence. The court ordered a new trial for Taillefer, but stayed the
    proceedings in the case of Duguay. The appellant submits that Duguays case is
    similar to his, especially because, like Duguay, he has served 8 years of his
    sentence.

[90]

In
    my view,
Taillefer

and Duguay
does not support the granting
    of a stay in this case. In considering what remedy to provide to Duguay, the Supreme
    Court canvassed a number of possible remedies. It held that a new trial for
    second degree murder would be unjust, because it would amount to punishing
    Duguay for succeeding in having his guilty plea and his conviction on the
    reduced charge of manslaughter quashed. The court then held, at para. 128, that
    a new trial for manslaughter would also be unjust, because it would be an
    unfair burden for the appellant Duguay, who has already, in effect, been
    punished for that offence.

[91]

In
    Duguays case, the material that was not disclosed went to his factual innocence.
    It would be an unfair burden to require that he go through a new trial that,
    because of the non-disclosure, would end in his acquittal. There would also be
    unfairness if he were to be convicted of manslaughter, despite the availability
    of the previously undisclosed material. The court described the nature of this
    unfairness, at para. 128, in these terms:

A resumption of the proceedings, so that the trial judge could
    find, at the end of those proceedings, that the accused has already effectively
    spent the time in prison that is normally imposed in the case of any term to
    which he might be sentenced if he were convicted does not seem to be in the
    public interest in any sense, and places an excessive burden on the appellant.
    At some point or other, in circumstances like these, a stay of proceedings
    seems to be virtually inevitable.

[92]

In
    the appellants case, Dr. Smiths perjury went principally to proof of
mens
    rea
. The fresh pathology evidence does not show that the appellant could
    not be convicted of murder. There remained a significant circumstantial case
    for murder, particularly based upon the evidence of abuse that the deceased
    suffered before he died. As the Supreme Court of Canada observed when it
    ordered a new trial in the appellants case, at para. 7:

Both appellants, on the other hand, seek acquittals on the
    counts of murder and criminal negligence causing death, and urge us to order a
    new trial only on the remaining counts. We are satisfied that acquittals would
    at this stage be inappropriate, since we are not prepared to say that there
    remains no evidence upon which a properly instructed jury, acting reasonably,
    could find the appellants guilty of the homicide-related offences of which they
    were convicted at trial.

[93]

In
    these circumstances, retrying the appellant for homicide would not have placed
    an unfair burden upon him. Balancing the interests favouring a stay and those
    favouring a trial on the merits in this troubling case ultimately favours a
    trial.

DISPOSITION

[94]

Accordingly,
    I would dismiss the appeal.

Released: MR July 16, 2013

M. Rosenberg J.A.

I agree. E.A. Cronk
    J.A.

I agree. S.E. Pepall
    J.A.





[1]
Quebec, Commission Poitras.
Rapport de la
    Commission d'enquête chargée de faire enquête sur la Sûreté du Québec.
Québec: La Commission, 1999.


