



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blackett, 2018 ONCA 119

DATE: 20180207

DOCKET: C51004

MacFarland, Pardu and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

ONeil Blackett

Appellant

James Lockyer, for the appellant

Roger A. Pinnock, for the respondent

Heard: January 29. 2018

On appeal from the conviction entered on August 30, 2001
    by Justice David Watt of the Superior Court of Justice, sitting without a jury.

By the Court
:

[1]

This
    is another appeal that arises as the result of the reinvestigation of cases
    where Dr. Charles Smith provided opinions and evidence as to the cause of death
    in children.

[2]

On
    February 8, 1999 the appellant was babysitting his 13 month old daughter,
    Tamara at the childs mothers apartment in Scarborough while the mother was
    out doing errands. At 2:00 p.m. the mother returned to find the child lifeless
    in her playpen. Resuscitative efforts were unsuccessful and the child was
    pronounced dead shortly after her arrival at Scarborough Grace Hospital.

[3]

Dr.
    Smith opined that the child had died as a result of a mechanical type of
    asphyxia likely caused as the result of neck compression or possibly blunt
    force applied to the abdominal/chest area accompanied by a choking episode. He
    dismissed the possibility that the child died from aspiration of stomach
    contents or any other accidental or unexplained cause.

[4]

The
    appellant was charged with second degree murder and was ultimately committed to
    stand trial on that charge. Eventually he pleaded guilty to manslaughter and
    was sentenced to three years and three months imprisonment in addition to the
    15 months of pre-trial custody. The appellant has served his sentence.

[5]

On
    September 15, 2009, the late Justice Rosenberg of this court granted the
    appellants application for an extension of time to file an appeal from his
    conviction. Before this court the appellant seeks to have his guilty plea set
    aside, the manslaughter conviction quashed and a new trial on the charge of
    manslaughter.

[6]

This
    court has the jurisdiction to set aside a plea on appeal where the appellant
    establishes that there are valid grounds for doing so and it is in the
    interests of justice. In our view this is one of those cases.

[7]

The
    appellant is now 41 years old. After graduation from high school in the late
    1990s he met Valda Thomas. She lived in his neighbourhood and had two children
    from a prior relationship. The two severed their relationship in mid-1997. Tamara
    was born on January 18, 1998. In September of that year, Ms. Thomas told the
    appellant he was Tamaras father. He began to visit, provide some financial
    support and on occasion babysit Tamara and her sisters.

[8]

Tamara
    had a history of breathing difficulties and intestinal problems. On December
    30, 1998 she was hospitalized overnight for high fever, gastroenteritis and
    dehydration.

[9]

On
    January 20, 1999 Tamara suffered a fractured right femur while in the
    appellants care at Ms. Thomas home. The first paramedic on the scene
    described the appellant as an anxious parent who showed concern and tried to
    comfort the child as her leg was being splinted. He told medical personnel that
    the child had been in her wooden crib and her leg had become entangled in its
    spindles. Police, called by hospital staff to investigate, determined the crib
    to be unsafe; the injury was ruled accidental. The child was placed in a hip
    spica cast which she was still wearing when she died.

[10]

The Childrens Aid
    Society (CAS) was notified and Tamaras case was referred to the Suspected
    Child Abuse and Neglect (SCAN) team at the Hospital for Sick Children. Ms.
    Thomas refused to co-operate with the investigation while the appellant was
    co-operative with the CAS and tried to persuade Ms. Thomas to be also. The
    investigation was ongoing at the time of Tamaras death.

[11]

In the days following
    her release from hospital Tamara became ill; she was vomiting and began losing
    weight in the days prior to her death.

[12]

On February 8, 1999
    the appellant had spent the day with Tamara. On Ms. Thomas return from doing
    errands Tamara was found lifeless and cold to the touch in the playpen. There
    is a dispute on the evidence about whether the appellant tried to prevent Ms.
    Thomas from calling 911 but a call was made. The appellant was described as
    distraught and confused when police arrived and he was performing CPR on
    Tamara. The appellant showed police the playpen where Tamara had been found and
    pointed out to them the stains on the bedding which he thought indicated that
    the child had thrown up while sleeping. He denied causing harm to the child.

[13]

The appellant told
    police the child had suffered from constant diarrhea and vomiting since coming
    home from the hospital. Since being in the cast there was a problem with her
    laying on her back, because she always used to throw up whatever we gave her.
    Before noon the appellant put Tamara in her playpen with a bottle of chocolate
    milk which she drank until falling asleep. Other than the problems described
    above, the appellant told police that he did not note any other signs that the
    child was unwell.

[14]

As noted, at the
    preliminary inquiry Dr. Smith opined that mechanical asphyxia had caused
    Tamaras death. He opined on several hypothetical mechanisms that may have
    caused the death including smothering and strangulation in addition to those
    already noted. He particularly emphasized other injuries found on the child at
    post mortem including fractures of both left and right femurs and several rib
    fractures.

[15]

Concerns about Dr.
    Smiths work began to arise in 2001. The Crown sought an independent review or
    Tamaras case and Dr. Dowling, Chief Medical Examiner in the province of
    Alberta was retained. Although some concern was raised in Dr. Dowlings first
    report about Dr. Smiths conclusions; it was generally supportive.

[16]

Dr. James Ferris, the
    head of Pathology at Vancouver General Hospital and former Chief Forensic
    Pathologist of British Columbia was retained by the appellant to review Dr.
    Smiths findings. In his May 3, 2001 report he disputed some of Dr. Smiths
    conclusions and doubted his interpretation of others.

[17]

In a second report
    dated June 7, 2001 Dr. Dowling stated:

The best I am able to do, as a pathologist, is express my
    concern that I do not see a clear cut underlying cause of death.

[18]

Fifteen months after
    the appellant was committed for trial  and two weeks prior to the commencement
    of his trial on the second degree murder charge, the Crown offered to withdraw
    the second degree murder charge in exchange for the appellants plea of guilty
    to unlawful act manslaughter and a term of imprisonment of four years on the
    manslaughter conviction.

[19]

A number of factors
    came into play in the appellants decision to plead guilty to manslaughter. Of
    particular significance was the impact he thought Dr. Smiths evidence would
    have on the jury. That together with the fact that a jury was unlikely to be
    sympathetic toward him because the case involved the alleged murder of an
    infant and that in his opinion and that of his lawyer he would not be an
    effective witness on his own behalf. It was in these circumstances, that
    despite his lawyers admonition that he not plead guilty to something he did
    not do, he nevertheless instructed his lawyer to agree to certain facts that
    were read into the record when his plea was taken including:

Tamara Thomas died of asphyxia on February 8, 1999. She was 13
    months old. This asphyxiation was precipitated by ONeil Blackett in
    frustration forcefully trying to feed the child with sufficient violence to
    cause vomiting and choking. He then left her either unconscious or entering
    unconsciousness, unable to breathe, and she died.

Dr. Charles Smith of the Hospital for Sick Children performed
    an autopsy on February 9, 1999. He found evidence of several injuries, but no
    anatomical cause of death. In particular as they related to the cause of death,
    he found:

·

A bruise and a small tear to the frenulum, inside the upper lip;

·

A deep hemorrhage to the left sternomastoid muscle, not
    externally visible;

·

Pulmonary hemorrhages consistent with asphyxia.

[20]

And of course Dr.
    Smith ultimately concluded the death of Tamara to be a result of asphyxia.

[21]

Filed by way of fresh
    evidence on this appeal are the affidavits of the appellant and his trial
    counsel, Stephen Bernstein which explain why the appellant pleaded guilty to
    manslaughter despite always insisting that he did nothing to cause Tamaras
    death.

[22]

In April 2007, it was
    learned that Dr. Smith had made errors in some 20 files that were reviewed by
    the Office of the Chief Coroner of Ontario including the case of Tamara Thomas.

[23]

Since that time, as
    the fresh evidence discloses, Dr. Milroy had prepared in December, 2007 a
    detailed medico-legal report in which he was critical of Dr. Smiths autopsy
    report and his conclusion that asphyxia was the cause of death. Dr. Milroys
    detailed findings are set out in his report filed as part of the fresh evidence
    on this appeal. He concluded the cause of death was unascertained.

[24]

Dr. Milroy repeated in
    his evidence before the Goudge inquiry, his view of Dr. Smiths conclusions as
    outlined above and concluded there was insufficient evidence to support a
    definitive cause of death.

[25]

Both Dr. Jack Crane,
    State Pathologist for Northern Ireland and Dr. Michael Pollanen, Chief Forensic
    Pathologist for Ontario supported Dr. Milroys opinions and were critical of
    Dr. Smith.

[26]

At the request of
    counsel, Dr. Milroy in 2013 prepared a further report and in that report
    concluded that Dr. Smiths conclusion that asphyxia was the cause of Tamaras
    death was not supported by the autopsy findings. He could neither exclude a
    natural or an unnatural cause of death.

[27]

Dr. Michael J. Shkrum
    of the London Health Sciences Centre in his report dated April 12, 2013 came to
    a similar conclusion. He concluded
inter alia
:

1.

The use of the
    term asphyxia to designate the cause of death in this case is inappropriate.
    Asphyxia is a mechanism of death in which hypoxia or lack of oxygen arises from
    a specific case.

2.

Although there
    are mechanical causes of asphyxia which interfere with breathing (e.g.
    smothering) or blood flow to/from the brain (e.g. strangulation), there are no
    definitive findings which allow the death of Tamara Thomas to be linked to a
    specific type of mechanical asphyxia. The findings cited or observed by Dr.
    Smith are either non-specific of have plausible alternative explanations.

6.

In my opinion,
    the cause of death is Unascertained in a child who acutely aspirated while
    being treated with hip spica cast for a femur fracture and who also has
    multiple healing fractures.

[28]

The appellant seeks to
    have admitted as fresh evidence:

1.

Backgrounder
    prepared by the Chief Coroner of Ontario (November 1, 2005)

2.

Backgrounder
    prepared by the Chief Coroner of Ontario (April 19, 2007)

3.

Dr. Christopher
    Milroy: Autopsy Report Review Form (Dec. 2006)

4.

Dr. Christopher
    Milroy: Medico-Legal Report prepared in October, 2007.

5.

Extracts from
    Dr. Milroys Testimony at the Goudge Inquiry

6.

Dr. Pollanens
    Memorandum prepared for the Goudge Inquiry

7.

Extracts from
    the Goudge Report

8.

Report of Dr.
    Milroy dated February 8, 2013

9.

Report of Dr.
    Shkrum dated April 12, 2013

10.

Affidavit of Stephen Bernstein
    sworn September 10, 2014

11.

Affidavit of Appellant sworn
    October 11, 2017

12.

College of Physicians and
    Surgeons (Ontario) v. Smith
, 2011 Carswell Ont. 2589

[29]

The Crown fairly does
    not contest the admission of this evidence nor dispute its content.

[30]

In para. 23 of its
    factum the Crown notes:

Dr. Smiths conclusion that asphyxia properly described the
    cause of death in this case is reflected in the agreement statement of fact
    tendered in support of the plea. It is now well understood that Dr. Smiths
    opinion in this regard cannot be relied upon.

The respondent accepts that in the circumstances of this case,
    Dr. Smiths flawed opinion as to the cause of Tamara Thomas death played a
    significant role in the appellants decision to enter a plea of guilty.
    Accordingly, the respondent agrees that it is in the interests of justice in
    the circumstances of this case that the conviction be set aside and a new trial
    ordered on a charge of manslaughter.

[31]

In our view this is
    one of those cases, where despite the passage of time since the plea was
    entered, this court should exercise its power to set aside the guilty plea in
    the interests of justice. The fresh evidence establishes that absent Dr.
    Smiths flawed opinion the appellant would not have pleaded guilty to
    manslaughter.

[32]

Accordingly, the fresh
    evidence is admitted, the appeal is allowed, the guilty plea set aside, the
    conviction for manslaughter is set aside and a new trial is ordered.

[33]

Our thanks to Mr.
    Lockyer and Mr. Pinnock for their assistance.

Released: February 7, 2018 (M.L.B.)

J. MacFarland J.A.

G. Pardu J.A.

M.L. Benotto J.A.


