





CITATION:
R. v.
Marquardt
, 2011
          ONCA 281



DATE: 20110408



DOCKET: C24367



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Tammy Marquardt



Appellant



James Lockyer, for the appellant



Gillian Roberts, for the respondent



Heard: February 10, 2011



On appeal from conviction for
          second degree murder entered by Justice John R. McIssac of the Superior Court
          of Justice, sitting with a jury, dated October 24, 1995, and pursuant to an
          order of the Supreme Court of Canada, dated April 30, 2009, remanding the
          case to the Court of Appeal for Ontario for consideration of the fresh
          evidence and whether the appellants conviction constitutes a miscarriage of
          justice.



By The Court:

[1]

This appeal originates in the reinvestigation of cases
    where Dr. Charles Smith had provided opinions and evidence as to the cause of
    death of children.  In 1993, the
    appellant, Tammy Marquardt, was charged with second degree murder of her two
    and a half year old son, Kenneth.  On October
    24, 1995, she was convicted of second degree murder and her appeal to this
    court was dismissed in 1998.  In 2009, as
    a result of the reinvestigation of the cases in which Dr. Smith had conducted
    the autopsy, the appellant applied for leave to appeal to the Supreme Court of
    Canada.  The application was granted and
    the case was remanded to this court for consideration of fresh evidence and
    whether the applicants conviction constitutes a miscarriage of justice.

[2]

Crown counsel agrees that much of the proposed fresh
    evidence should be admitted, the appeal allowed, the conviction quashed and a
    new trial ordered.  This is the
    disposition that the appellant sought on her appeal.  At the conclusion of oral argument we allowed
    the appeal and ordered a new trial, for reasons to follow. These are our
    reasons.

THE FACTS

Events leading up to the death

[3]

The appellant was 19 years of age when Kenneth was
    born.  By 1993, she was no longer living
    with the childs father and had begun a relationship with Rick Marquardt.  She moved in with him in September 1993.  Kenneth had several health issues including
    asthma and pneumonia.  However, the
    health issue that was to become a prominent feature of the case was the cause
    of the seizures that Kenneth suffered on several occasions.  It was the position of the defence at trial
    that Kenneth had epilepsy and that he died accidentally in the course of a
    seizure.  Prior to his death, the
    appellant took Kenneth to the hospital several times because of these
    seizures.  The last hospital attendance
    was in September 1993 when the appellant took Kenneth to Oshawa General
    Hospital.  He was then transferred to the
    Hospital for Sick Children in Toronto.

[4]

During the appellants pregnancy and thereafter, the
    appellant had several contacts with community social workers.  The Crown adduced evidence from some of these
    social workers about statements the appellant made concerning Kenneth.  For example, the appellant said that she
    occasionally experienced
blackouts, that
Kenneth was
    difficult to soothe, she imagined putting her arms around his neck, and placing
    her hand over his mouth to stop him from crying.  The appellant testified at trial that she was
    only expressing fears that she might unintentionally mishandle Kenneth arising
    from her exhaustion in caring for him.  In early 1993, Kenneth was placed in a foster home for several months at
    the request of the appellant because she was under stress and was worried she
    might hurt Kenneth.  In July 1993, the
    appellant told a supervisor at the Y.M.C.A., where she had gone to escape abuse
    from Mr. Marquardt, that she had squeezed Kenneths leg and caused a bruise.

[5]

On Saturday October 9, 1993, the appellant was home
    with Kenneth and Mr. Marquardt.  Around 8:00 a.m., Mr. Marquardt left the house in response to a call
    from a former girlfriend who was about to give birth and wanted him to be with
    her.  The appellant was alone with
    Kenneth thereafter.  The appellants
    version of events leading to the death are described as follows in her
    counsels factum:

Around 4:00 p.m., the Appellant woke up and went to
    the bathroom. She heard Kenneth calling her.  It was muffled but it sounded like Mommy, Mommy.  She called back that she would be there soon
    and finished in the bathroom.  When she
    went into the bedroom, Kenneth was rolled up in the bedding.  His head was at the foot of the bed and all
    twisted up in the sheets down to his chest.  He was tangled up and it was hard to get the sheets off him.  The Appellant was panicking.  Kenneth was saying Mommy, Mommy and she was
    saying Mommys here, its
ok,
Mommys going to get
    you out.  Then he was just saying Mom;
    it was faint and at this point she realized that there was something seriously
    wrong.  She finally untangled him from
    the bedding.  In her affidavit, she describes
    the passage of time:

When the police later asked me how long this all
    took I said about 20 minutes; that is how long it seemed to me.  For some reason, I noticed the clock in the
    bedroom said 4:33.  I later came to know
    that the 911 call was made at 4:38 so my time estimate was off; I can only say
    it seemed like an eternity as I tried to extricate Kenneth from the sheets.

Kenneth was white and he did not seem to be
    breathing.  She ran with him in her arms
    to the phone and called 911.

The Appellant tried to follow the 911 C.P.R.
    instructions but was unable to:

Q.        Why
    not?

A.        Because
    I could hardly breathe myself.

Q.        What
    do you mean you could hardly breathe yourself?

A.        I
    was crying a lot and really upset.

[6]

Emergency workers arrived at the apartment at 4:42 p.m.
    within five minutes of the call.  The appellant
    was visibly distraught.  She directed
    them to Kenneth.  He was lying motionless
    on a couch to which she had moved him.  His face was a grey-ashen colour and he was not breathing.  The appellant told the workers that he had a
    history of epilepsy.  Efforts at
    resuscitation at the apartment failed and he was transported immediately to
    Oshawa General Hospital.  He was later
    transferred to the Hospital for Sick Children.  The emergency physician who saw Kenneth was not satisfied with the
    appellants explanation for the childs condition and he asked that the
    Suspected Child Abuse and Neglect Unit become involved.  Kenneth died three days later when he was
    removed from life-support.  His liver,
    kidneys and heart valves were harvested for organ donation.

The evidence of Dr. Smith

[7]

Dr. Smith performed the autopsy.  He testified that the absence of the
    harvested organs was a minor inconvenience.  He testified that the cause of death was asphyxia which caused
    irreversible brain damage.    He defined
    asphyxia as a condition affecting the organs of the body or the body wherein
    there is impaired delivery or utilization of oxygen.  An injury occurs because either there is
    inadequate supply of oxygen or the oxygen which is present cannot be properly
    used.

[8]

Dr. Smith relied upon scattered
    petechial haemorrhages (tiny red spots) over the surfaces of Kenneths heart,
    lungs and thymus as evidence of asphyxia.  He also testified that he found microscopic haemorrhages in the small skeletal
    muscles of the neck, which he considered consistent with a non-accidental
    injury to the neck.  He further testified
    that the childs brain was extremely swollen, which was part of the
    asphyxia.  He put these findings together
    to provide this opinion to the jury:

So what Im left with in Kenneth is this: He has
    evidence of asphyxia.
I have no natural disease that explains the
    asphyxia.
I have some microscopic
    evidence of hemorrhage in his neck that would be consistent with neck injury,
    but I cant say whether that neck injury was accidental or non-accidental.  It would appear to be not a severe or
    prolonged neck injury if it was real such that we see the petechial changes in
    or around his eyes or in the region of his face.

So, what Im
    saying is that he died of asphyxia.
The asphyxia could be environmental, could be an environmental lack of
    oxygen,
could
be something like a plastic bag or a gentle
    suffocation.  It could be a neck
compression,
I cant rule that out, though I dont have
    incontrovertible evidence of that.
I
    have no evidence that he died of things like hotdogs, but then I wasnt there,
    so I cant make that statement.  [Emphasis added.]

[9]

Dr. Smith went on to testify that his findings were
    consistent with suffocation with a soft object, a pillow, a plastic bag or if
    someone held his nose and mouth closed and he was suffocated that way.  He discounted seizure as a cause of death as
    he had no evidence of that at all.  In
    particular, he testified that you dont have evidence of asphyxia from sudden
    and unexpected death in epilepsy (SUDEP).  However, he allowed that he was not an expert on this condition and the
    opinion of a pediatric neurologist would be better than his opinion on that
    issue.

[10]

Evidence was led at trial that Kenneth had had
    seizures, and that he was on medication for epilepsy:
dilantin
.  A blood test taken at the hospital indicated
    that the amount of
dilantin
in the childs body was
    below therapeutic level.  The evidence at
    trial respecting the seizures was inconsistent and two of the physicians
    testified that based on their review of the hospital records all but one of
    seven seizures suffered by Kenneth were associated with fever (febrile
    seizures).  Febrile seizure in young
    children was described at trial as a fairly mild condition, unlike epileptic
    seizures.  Dr. Logan, a pediatric
    neurologist, treated Kenneth following his admission to hospital on October 9,
    1993.  He testified that SUDEP was not
    applicable in Kenneths case.

The Appellants statements following the death

[11]

At trial, the Crown led evidence of the various
    statements the appellant made to emergency personnel, the police and hospital
    personnel.  The statements were
    consistent and were to the effect that she found Kenneth struggling in his bedclothes
    and that it took her 10 to 20 minutes to extricate him by which time he was not
    breathing.

[12]

The Crown also led evidence that two weeks after the
    death, the appellant was drinking with Mr. Marquardt and others.  According to Mr. Marquardt and the appellant,
    during the evening, she screamed several times that she had forgotten how to do
    C.P.R. and had killed Kenneth.  She asked
    to be taken to the cemetery where she kept shouting that she had killed Kenneth
    because she had forgotten how to do C.P.R.   However, contrary to the evidence of the
    appellant and Mr. Marquardt, the two other persons present testified that the
    appellant looked them in the eye and stated that she had killed Kenneth in the
    sense of an intentional killing.  They
    denied that she was simply expressing guilt over not being able to do
    C.P.R.

THE FRESH EVIDENCE

[13]

In 2005, the Chief Coroner directed a review of cases
    in which Dr. Smith had performed an autopsy or provided an opinion.  Professor Pekka Saukko of Finland was asked
    to review the appellants case.  Professor Saukko provided an opinion and later testified at the
Inquiry into Paediatric Forensic Pathology
(the 
Goudge Inquiry
).  In Professor Saukkos opinion there was not
    sufficient evidence for Dr. Smith to have made the diagnosis of asphyxia.  In particular, that diagnosis could not be
    based only on petechial hemorrhages on the
heart, lungs and thymus, which
    are non-specific.  The cause of death
    should have been given as unascertained.  The other reviewing pathologists agreed with Professor Saukkos opinion.

[14]

The appellant retained Dr. Simon
    Avis, a forensic pathologist, to provide an opinion.  He agreed with Professor Saukko but, in
    addition, suggested that several possible causes of death could not be
    excluded, including SUDEP.  The Crown
    retained Dr. Christopher Milroy, also a forensic pathologist, to provide
    an opinion.  He also agreed with
    Professor Saukko that Dr. Smith had made significant mistakes and that the
    cause of death should have been described as unascertained.  He also agreed that a seizure disorder could
    not be excluded and that Dr. Smith was wrong to exclude SUDEP on purely
    pathological grounds.  At the suggestion
    of Dr. Milroy, the parties retained paediatric neurologists to provide opinions
    concerning SUDEP.  While the Crown
    submits that portions of the opinions provided by these experts, Dr. Elizabeth
    Donner (retained by the defence) and Dr. Carter Snead (retained by the Crown)
    went beyond the proper scope of expert evidence, much of the opinions are
    admissible.  Those opinions provide
    additional support for the possibility of SUDEP as a cause of death in
    Kenneths case. In particular, their analysis of the medical records supports
    the view that Kenneth had epilepsy and was not simply experiencing febrile
    seizures.

ANALYSIS

Admissibility of the Fresh Evidence

[15]

The evidence of Professor Saukko and Drs. Avis and
    Milroy is admissible as fresh evidence in this appeal.  Their evidence meets the test for fresh
    evidence as set out in
R. v. Palmer and
    Palmer
, [1980] 1 S.C.R. 759 and
Reference
    re: Truscott
(2007), 225 C.C.C. (3d) 321 (Ont. C.A.), and the test for
    expert evidence as laid down in
R. v.
    Mohan
, [1994] 2 S.C.R. 9.  The Crown
    accepts, and we agree, that this evidence is credible, reliable and could
    reasonably be expected to have affected the verdict.

[16]

The fresh evidence shows that Dr. Smith made several
    significant errors that could have misled the jury and led to a miscarriage of
    justice.
First and most importantly, the conclusion of a cause
    of death of asphyxia, based on the findings at autopsy such as petechial
    haemorrhages on the Kenneths organs and neck, was erroneous.  The fresh evidence demonstrates that petechial
    haemorrhages are non-specific findings and are not diagnostic of intentional
    suffocation as was suggested by Dr. Smith in his evidence.  The expert evidence demonstrates that the
    cause of death and manner of death, from a forensic pathologies perspective,
    are undetermined or unascertained.

[17]

Second, Dr. Smiths testimony, and particularly his use of the term
    asphyxia, was confusing and misleading.  In this regard we note the comments made by Commissioner Goudge
    concerning asphyxia in
Report of the
    Inquiry into Paediatric Forensic Pathology in Ontario
, vol. 3 (Toronto:
    Queens Printer for Ontario, 2008), at pp. 408-409:

It is clear that a pathologists opinion about the
    cause of death, if it is not carefully expressed, can be a major source of
    misunderstanding.  The best example that
    emerged from the Inquiry was the use of the term asphyxia.  Dr. Smith opined that asphyxia was the cause
    of death for a number of the cases under review.  Asphyxia, based on its Greek root, literally
    translates as stopping of the pulse.  However, the evidence at this Inquiry demonstrated that the term has
    commonly been used to mean simply that the deceased stopped breathing or was
    deprived of oxygen.  It has also been
    used frequently to denote mechanical asphyxia through the intervention of a
    third party.  The latter meaning is
    radically different from the former, in that it generally implies
    non-accidental injury.
One of the problems identified at the
    Inquiry was that Dr. Smith used the term asphyxia in inconsistent ways.  At times he used it in its more inculpatory
    sense as indicating mechanical asphyxia through the intervention of a third
    party.  At other times he used it in its
    more benign sense, although this distinction would not always be apparent to
    the police and others who received the opinions.   The situation was compounded by Dr. Smiths
    testimony.  He sometimes explained what
    asphyxia meant in ways that were, at best, confusing and nearly
    incomprehensible.
The varied
    meanings that can be given to the term asphyxia not only invite caution in its
    use but present a compelling argument to avoid its use altogether, if confusion
    and misunderstanding are to be avoided.  [Emphasis added.]

[18]

In his report, the Commissioner also referred to other
    troubling aspects of Dr. Smiths testimony in the appellants case related
    to the cause of death (see vol. 1, at p. 188):

Dr. Smith also from time to time used language in
    his testimony that was loose and unscientific.  Certain inappropriate expressions are found throughout his
    testimony.  The language of betting is
    one of them.  In Kenneths case, Dr.
    Smith testified that suffocation can occur without leaving any marks and that,
    if he were a betting man, he would say that suffocation was a better
    explanation for Kenneths death than manual or ligature strangulation.

[19]

Third, the fresh evidence suggests that the possibility the death was due
    to natural
causes,
in particular, SUDEP may not have
    been fully appreciated at the time of the trial.  Finally, it was an error for Dr. Smith to
    testify that the autopsy excluded SUDEP as a cause of death.

[20]

We are also of the view that much of the evidence of Drs. Donner and
    Snead concerning SUDEP meets the test for fresh evidence.  That evidence is helpful in understanding the
    likelihood that Kenneth had epilepsy and in understanding SUDEP.  While SUDEP as a possible cause of death was raised
    at trial, the evidence of Drs. Donner and Snead provides additional
    support for the proposition that SUDEP could not be excluded as a cause of
    death.  Their evidence, taken with the
    other expert evidence adduced on this appeal, could have left the jury with a
    reasonable doubt that the appellant caused the death of her child.

[21]

We do, however, agree with Crown counsel that some parts of the evidence
    of Drs. Donner and Snead are not admissible, in particular, the opinion of both
    experts that SUDEP was likely the cause of death.  In giving these opinions, these physicians
    went beyond their area of expertise.

The Order to be Made

[22]

The appellant agrees with Crown counsel that the
    appropriate order in this case is a new trial rather than an acquittal.  The fresh evidence completely undermines
    Dr. Smiths evidence to the effect that Kenneths death was caused by
    asphyxia and his suggestion that the most likely mechanism was manual
    strangulation and suffocation.  The
    pathological evidence now, at best, would classify the cause of death as
    unascertained.  The evidence of the
    paediatric neurologists, together with a better understanding of Kenneths
    history, suggests that SUDEP cannot be excluded as the cause of death.

[23]

However, as Crown counsel pointed out at the hearing of
    the appeal, there was other evidence in this case, including the statements
    made by the appellant before and after the death and her description of the
    events leading up to the death.  Some
    parts of that description could be found to be inconsistent with SUDEP as a
    cause of death.  That said
,
it would be open to the jury to accept the appellants
    explanations for her statements.  And,
    the expert evidence could, as we have said, raise a reasonable doubt as to the
    cause of death.  These are questions for
    a jury.

DISPOSITION

[24]

We conclude by returning to the order of the
    Supreme Court of Canada that remitted the case to this court.  The Supreme Court asked this court to
    consider the fresh evidence and whether the applicants conviction constitutes
    a miscarriage of justice.
It is manifestly in the
    interests of justice that the fresh evidence be admitted on this appeal since
    that evidence demonstrates that the appellants conviction constitutes a
    miscarriage of justice.  As we said at the
    hearing of the appeal, it is tragic that it has taken so long to uncover the
    flawed pathological evidence that so clearly contributed to the appellants
    conviction in 1995.

[25]

Accordingly, the fresh evidence, to the extent
    explained above, is admitted, the appeal is allowed, the conviction for murder
    set aside and a new trial order.

[26]

Finally, we wish to express our thanks to counsel for
    Ms. Marquardt and the respondent Crown for their assistance in this extremely
    difficult and complex case.


Signed:           M.
    Rosenberg J.A.

Robert J. Sharpe J.A.

David
    Watt J.A.

RELEASED: MR April 8, 2011


