





CITATION:
R. v. Kumar, 2011
          ONCA 120



DATE:  20110210



DOCKET: C48821



COURT OF APPEAL FOR ONTARIO



Rosenberg, Armstrong &
Rouleau
JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Dinesh
Kumar



Appellant



James
Lockyer
and Alison Craig, for
          the appellant



Gillian Roberts, for the respondent



Heard: January 20, 2011



On appeal from the conviction
          entered by Justice Edward F.
Ormston
of the Ontario
          Court of Justice (Criminal Division), dated December 3, 1992.



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 the early hours of March 18, 1992,
Gaurov
Kumar, then five weeks old, stopped breathing and
    was rushed to hospital. Breathing was restored, but
Gaurovs
brain was badly damaged. Two days later, on March 20, 1992, life support was
    terminated and
Gaurov
was declared dead.   Based
    on Dr. Smiths opinion that the baby was a victim of Shaken Baby Syndrome
    (SBS), the appellant,
Gaurovs
father, who had been
    caring for the baby at the time of his collapse, was charged with murder. 
    He eventually pleaded guilty to criminal negligence causing death, and the
    murder charge was withdrawn.  After a series of investigations of cases
    where Dr. Smith provided an opinion, in 2008, the Crown consented to an extension
    of time to allow the appellant to appeal his conviction.  The appellant
    seeks to have fresh evidence admitted, his guilty plea set aside, and an
    acquittal entered.  The Crown agrees with that disposition.  For the
    following reasons, the fresh evidence is admitted.
the
guilty plea is set aside, the appeal is allowed and an acquittal entered.

THE FACTS

[2]

The appellant is now 44 years of age. He immigrated to
    Canada from India with his wife,
Veena
, in 1991. They
    had their first child,
Saurob
, just before moving to
    Canada. Their second son,
Gaurov
, was born on
    February 11, 1992.  On the evening of the
    birth,
Veena
had a seizure in the hospital.  She was diagnosed with a brain tumour and
    remained in hospital for one month.

[3]

The appellants version of events on the evening of
    March 17, 1992 was as follows.  The
    appellant was at home with his wife and their two sons. At around midnight,
Gaurov
woke up crying.  The appellant fed him milk from a bottle, burped him and placed him back
    in his crib where he fell asleep.  At
    12:30 a.m.,
Gaurov
woke up with a scream.  The appellant picked him up, and realized he
    was not breathing and was turning blue.  He told his wife something was wrong.  The appellant gave
Gaurov
CPR including mouth
    to mouth.
Gaurov
was still not breathing.  The appellant
    called his brother-in-law to ask what to do (he did not understand the 911
    system).  His brother-in-law told him to
    call 911.  Although neither the appellant
    nor his wife spoke English very well, both spoke to the emergency operator and
    soon after emergency personnel arrived at their home. Mrs. Kumars brother and
    sister-in-law also arrived.

[4]

The aunt was seen by emergency personnel to give
Gaurov
three to four... good hard shakes ... but not ... a
    violent shake.  Emergency personnel then
    took over and administered first aid to
Gaurov
.  He was taken to Scarborough Centenary
    Hospital and his breathing was restored.  The appellant explained to the physician as best he could what had
    happened.
Gaurov
was diagnosed by Dr. Beaulieu as having suffered from 
cardiorespiratory
arrest secondary to choking spell. A
    secondary diagnosis was also provided 
anemia
of unknown
etiology
, possible central
    nervous system haemorrhage.

[5]

Gaurov
was transferred that
    same morning to the Hospital for Sick Children and put on life-support.  On Friday, March 20, 1992, the life support
    was removed and
Gaurov
died.  His brother
Saurob
was immediately apprehended at the hospital by Childrens Aid.
Saurob
was returned
    to his mother following a family court proceeding on July 2, 1992.

The Autopsy

[6]

On March 21, 1992, the day after
Gaurovs
death, Dr. Charles Smith conducted the autopsy at the Hospital for Sick Children.  He found extensive haemorrhaging within the
    brain, behind both retinas and around the spinal cord.  It was his opinion that these critical
    medical abnormalities had all the earmarks of injuries sustained after an
    episode of Shaken Baby Syndrome. Dr. Smith solidified his opinion after conducting
    further tests, declaring that the injuries were definitely not accidental in
    nature and because of the absence of external
trauma,
the injuries were consistent with Shaken Baby Syndrome. Additionally he
    explained that the injuries were probably a result of continuous shaking as
    opposed to a single violent shake.

[7]

In his
post-mortem
report, Dr. Smith also noted
    an old chronic subdural hematoma in the occipital lobe (located in the back of
    the skull), the
tentorium

cerebelli
(an extension of the
dura
on which the lobes rest)
    and the cervical cord, which he wrote may have been as old as five weeks i.e.
    as a result of birth trauma.  Dr. Smith
    certified the cause of death as Head Injury.  Dr. Dirk
Huyer
, a
    physician who was a member of the Suspected Child Abuse and Neglect Program
    (the SCAN unit) at the Hospital for Sick Children agreed with Dr. Smiths
    conclusion.  Dr.
Huyer
had no training in pathology.

The Appellants Arrest and Guilty Plea

[8]

On June 26, 1992, the appellant was charged with second
    degree murder.  He was released on bail
    on July 10, 1992.  He was represented by
    Mr. David
Gorrell
and Mr.
Dhaman

Kissoon
. In preparation for trial, the defence
    retained a hospital pathologist, Dr. Jay Naidoo of the Queensway General
    Hospital, to review Dr. Smiths findings.  Dr. Naidoo had no training in forensic pathology.  He verbally advised Mr.
Gorrell
that he agreed completely with Dr. Smiths conclusions of baby-shaking, and
    consequently he was not asked to provide a written report.

[9]

Unexpectedly, the Crown offered to withdraw the second
    degree murder charge if there was a plea to criminal negligence causing death. Subsequently,
    on December 3, 1992, the appellant entered a guilty plea before
Ormston
J. of the Provincial Court (Criminal Division) on a
    new Information alleging Criminal Negligence Causing Death.  Justice
Ormston
accepted a joint submission on sentence and sentenced the appellant to 90 days
    imprisonment to be served intermittently, followed by two years probation.  The transcript of that proceeding is no
    longer available.

THE FRESH EVIDENCE

Explanation for Guilty Plea

[10]

Mr.
Gorrell
testified at the
Inquiry

into Paediatric Forensic
    Pathology
(the 
Goudge
Inquiry
), that the appellant had
    maintained his innocence from the outset of his case, until the day he attended
    Mr.
Gorrells
office to provide him with written
    instructions to the contrary, and to accept the Crowns offer. Mr.
Gorrell
prepared a plea Direction for the appellant. He
    believed that one of the main reasons the appellant pleaded guilty may have
    been to ensure that his family could remain together, and to avoid losing
    custody of his surviving son forever.   He further noted that the appellant ran the risk of deportation had he
    been convicted of second degree murder or manslaughter and he so advised the
    appellant.

[11]

The appellant filed an affidavit on this appeal. In his
    affidavit, he explained that after
Gaurovs
death, he
    and his wife were very sad and devastated. He said he cooperated with police
    because he wanted to know why
Gaurov
died. He was
    shocked when he was arrested, and felt confused, frightened and ashamed before
    his family and the community.

[12]

He related in his affidavit (confirmed by medical
    records) that, in 1991, his son
Saurob
had had an experience
    as an infant, similar to what happened to
Gaurov
, fainting
    suddenly and turning blue.  Three weeks
    after
Saurobs
apprehension by the Childrens Aid
    Society, CAS authorities placed him in the care of
Veenas
brother. Neither the appellant nor his wife was allowed to be alone with
Saurob
. After the appellant was released on bail, one of
    the conditions of his release was no contact with
Saurob
except in the presence of a CAS supervisor.

[13]

The appellant explained that he was in a new country
    with its own culture, and he did not speak English very well. He was told that
    he would be deported if convicted of murder or manslaughter but assured that
    the police would not report his case to immigration if he accepted the plea.
    The appellant explained how the plea would alleviate many pressures for him and
    his family. At the time, his wife was recovering from surgery and could not
    cope alone with an infant and no income. The family was afraid of the murder
    charge, and his defence counsel told him there was no way to challenge the
    testimony of Dr. Smith. They wanted to put the charge behind them. So after
    much discussion with his family, the appellant decided to plead guilty even
    though he maintained that he never harmed
Gaurov
in
    any way. Importantly, his probation order did not prevent the appellant from
    seeing
Saurob
.

[14]

After serving his sentence, the appellant still felt
    the shame of having to admit to causing
Gaurovs
death. He and his wife decided not to have another child. They think about
Gaurov
every day. While his wife and
Saurob
became Canadian citizens, the appellant never applied for citizenship for fear
    that his conviction could lead to an immigration investigation.

Chief Coroners Review and the
Goudge
Inquiry

[15]

This case came to light again during a review between
    2005 and 2007 by the Office of the Chief Coroner of Ontario of criminally
    suspicious and homicide cases in which Dr. Charles Smith performed an autopsy
    or provided an opinion.  The results of
    the review were announced in April 2007, and this case was identified as one of
    twenty where the external reviewers had significant disagreements with Dr.
    Smiths opinion.  The reviewer, Dr. Helen
    Whitwell, a forensic pathologist and
neuropathologist
from the United Kingdom, concluded in her Autopsy Report Review Form dated
    December 5, 2006, that while the opinion provided by Dr. Smith was in
    conformity with accepted opinion in 1992, [t]his would not be the usual view
    of the UK forensic pathologists now [although it] may well still prevail with
    the paediatricians.

[16]

The Chief Coroners review eventually led to the
Inquiry
    into Paediatric Forensic Pathology
conducted by Justice
Goudge
of this court. The
Inquiry
retained
    Dr. Whitwell to provide a more detailed medico-legal report of
Gaurovs
death, and testify before the inquiry.  Dr. Whitwell identified a number of issues of
    potential concern in this case, but did not provide a conclusion about the
    cause of death, recommending that this case be referred for review.  The issues she flagged as concerning were as
    follows:

First, the significance of the old [subdural
hemorrhage
], likely an injury from birth, and the question
    of whether or not re-bleeding can occur, and, if so, how much force, if any,
    may be necessary.

Second, the possibility that resuscitative shaking
    could have caused damage, particularly in the context of a chronic subdural
hemorrhage
.

Third, whether baby
Gaurov
even had the so-called triad of signs (subdural
hemorrhage
(SDH), retinal
hemorrhage
(RH), hypoxic-ischemic
    encephalopathy (HIE)) as no RH were observed when he was first examined in the
    emergency room at Scarborough Grace.

Fourth, the specificity of the
    triad alone, without any other evidence, pathological or circumstantial, of
    abuse.


[17]

Following the
Inquiry
the appellant brought an application for an extension of time to appeal his
    conviction.  With the consent of the
    Crown, that application was granted.

Crown Experts post-
Goudge
Inquiry


[18]

The Crown retained two experts to explore the issues
    identified by Dr. Whitwell, and to reconsider the case in light of current
    medicine:  Dr. Michael
Pollanen
, the Chief Forensic Pathologist for Ontario, and
    Dr. William
Halliday
, a paediatric
neuropathologist
who currently works at the Hospital for
    Sick Children.

(
i
) Dr.
Pollanen


[19]

In a lengthy report, Dr.
Pollanen
has provided a helpful review of the diverse views concerning the validity of Shaken Baby Syndrome.  There are a number of controversies
    surrounding Shaken Baby Syndrome.  Most
    prominent is the meaning that should be attached to the triad of symptoms considered
    to be indicative of SBS:  thin film
    subdural haemorrhage (SDH), widespread bilateral retinal haemorrhage (RH), and hypoxic
    ischemic encephalopathy (HIE).  In the
    early 1990s, when the autopsy was conducted in this case, these findings were
    widely accepted to be diagnostic of non-accidental head injury.  In effect, the infant had been shaken to
    death with such force that any normal adult would realize that the infant would
    be seriously injured.   The current view
    of forensic pathologists, although not necessarily clinicians, is that the
    triad is at worst suspicious, but can no longer be considered absolute proof of
    traumatic head injury in the absence of other evidence.  There are some experts who hold the view that,
    in fact, there is no such thing as shaken baby syndrome
;  it
is impossible to apply sufficient
    force to an infant by shaking without there being other injuries, such as
    trauma to the spine and neck areas.

[20]

The role played by evidence of the triad and SBS in
    convictions of caregivers has been examined at length on two occasions by the England
    and Wales Court of Appeal, (Criminal Division) in
R. v. Harris
, [2005] EWCA
Crim
1980 and
R. v. Henderson
, [2010] EWCA
Crim
1269.  That
    court having heard extensive evidence from many of the leading experts noted
    the evolution of thinking about the triad and SBS.  In
Henderson
,
    the most recent case, at paragraph 6, the court made the important point that
    the courts cannot finally resolve a medical controversy: the conclusion of any
    court as to the medical evidence, whether at first instance or on appeal, is
    dependent upon the evidence before that court.  These comments are particularly apt in this case.  The issues of the triad and SBS were not
    fully argued before us because the Crown concedes that the appeal must be
    allowed.  The fresh expert evidence,
    which we describe in greater detail below, provides a basis for finding that
    the conviction in this case was unsafe without having to resolve any
    controversy about SBS.

[21]

Dr.
Pollanen
noted that
Gaurov
had no scalp injuries, no skull fracture, and no
    diffuse or traumatic axonal injury (forms of severe damage to nerve cells
    (axons) in the brain caused by force).  With
    respect to the triad, Dr.
Pollanen
noted that in
Gaurovs
case, retinal haemorrhages had not been observed
    when
Gaurovs
eyes were first examined on arrival at
    the hospital. He hypothesized that the retinal haemorrhages developed later due
    to raised intracranial pressure from hypoxic-ischemic encephalopathy, rather
    than shaking.  He excluded resuscitative
    shaking (as may have been observed by the emergency personnel firefighters who
    first attended) as the cause of the injuries to the brain since the infant was
    dead at the time of the shaking.

[22]

Dr.
Pollanen
concluded that
    he was unable to establish that
Gaurov
was killed by
    shaking, and that although there are medical findings that could be interpreted
    as evidence of shaking or head injury, those findings were not sufficiently
    determinative of that conclusion given the current state of medical and
    scientific literature. Dr.
Pollanen
also cautioned that
    the science of paediatric head injury is still evolving, and that his views as
    described in his report are based on past and current literature, and may well
    be assessed differently in the future.  Dr.
Pollanen
suggested that other experts should be
    consulted in other areas including neuropathology, child abuse paediatrics,
neuroradiology
, ophthalmology and biomechanics.

(ii) Dr.
Halliday

[23]

Dr.
Halliday
disagreed with Dr.
Pollanens
opinion that the retinal haemorrhages were likely not present on initial
    examination at the hospital.  He believed
    that they were there but not seen by the examiner.  Further, in his opinion, the (likely)
    birth-related old subdural haemorrhage does not offer any particular insights
    to the case.

[24]

Dr.
Halliday
wrote that the evidence
    would cause a physician to be very suspicious that the appellants case
    represents a case of non-accidental head injury or abusive head trauma (modern
    terms for Shaken Baby Syndrome). He explained that today, the finding of the
    triad is considered to be suspicious, but not
pathognomonic
(necessarily characteristic) of abusive head injury. He also noted that the
    fact that his aunt shook
Gaurov
after he had
    collapsed added complexity to the case, since the autopsy would reflect that
    event as well.  Dr.
Halliday
concluded that, in the particular circumstances of the case, the cause of death
    is undetermined.

Appellants Experts post-
Goudge
Inquiry

[25]

Following receipt of the Crown reports, the appellant
    retained three experts, Dr. Chris Van
Ee
, a
    biomechanical engineer from Michigan, Dr. Jan
Leetsma
,
    a
neuropathologist
from Chicago, and Dr.
Waney

Squier
, a
neuropathologist
from Oxford.

(
i
) Dr. Van
Ee

[26]

Dr. Van
Ees
expertise does not enable him to provide an opinion as
    to cause of death for
Gaurov
, but he was able to
    provide an opinion on whether shaking could have caused
Gaurovs
head injuries. In his report, Dr. Van
Ee
explained
    that severe rotational acceleration/deceleration forces can cause subdural
    bleeding.  Dr. Van
Ee
reported that science does not support Shaken Baby Syndrome theories for two
    reasons: (a) shaking by a human cannot alone cause head injuries in a normal
    baby, (b) vigorous shaking of a baby would generally result in trauma to the
    spine and neck areas; injuries that have not been historically observed in
    suspected Shaken Baby Syndrome cases.

[27]

Dr. Van
Ee
noted that
Gaurov
did not have any notable chest or neck injuries. He
    concluded that in light of all the facts, in his opinion there was no
    bio-mechanical evidence that
Gaurovs
injuries were
    caused by shaking.

(ii) Dr.
Leestma

[28]

In his report on
Gaurovs
case, Dr.
Leestma
discussed his own research as well
    as that of others that has discredited Shaken Baby Syndrome. He stated that
    based on todays science, Shaken Baby Syndrome must remain an unproven
    hypothesis with no scientific, medical or legal significance.

[29]

Dr.
Leestma
reviewed the
    circumstances of
Gaurovs
death and concluded that he
    likely died as a result of his birth injury (increased intracranial pressure
    caused by chronic subdural fluid collections with recent bleeding) and not from
    abusive head trauma whether with or without shaking. He noted that while
non‑accidental
injury cannot be excluded, there is no
    positive evidence for it. A defensible and logical conclusion is that the child
    died from natural disease processes and their complications.

(iii) Dr.
Squier


[30]

In her report, Dr.
Squier
noted that Dr. Smiths diagnosis seems to have been based on the triad of
    subdural haemorrhages, retinal haemorrhages and brain swelling.  Dr.
Squier
spent
    some time in her report reviewing the causes of the triad, both natural and
    non-accidental.  In her view, the
    presence of
Gaurovs
old and chronic subdural haemorrhages
    was very significant.  She noted that
    birth-related subdural bleeding is common and that re-bleeding is commonly seen
    by microscopy in any baby with a chronic subdural membrane. This re-bleeding results
    from the vulnerability of the thin walled vessels in the membrane to leaking
    and bleeding, which may occur without trauma.

[31]

Dr.
Squier
concluded that the
    evidence indicates
Gaurov
developed a subdural
    haemorrhage at birth.
Neuropathological
observations are those of fresh bleeding
    into an older, healing subdural membrane consistent in appearance with having
    originated at birth. The history suggested that the baby choked and may have
    aspirated vomit or milk.  Choking could
    have been initiated by a seizure or have been a spontaneous event in the baby
    compromised by the presence of a healing subdural membrane. She concluded that
    there were no features which indicate violence or inflicted injury.

The Parties Positions

[32]

As a result of these expert reports the Crowns
    position is that the
prosecution  can
no longer establish a cause of
    death, let alone a homicidal cause of death.  Given that the Crowns case relies entirely on medical evidence and the
    appellant has explained his guilty plea, the Crown concedes that the conviction
    is unreasonable and should be set aside and an acquittal entered.

[33]

Counsel for the appellant submits that the fresh
    evidence has explained the guilty plea and that the appellant should be
    permitted to withdraw the plea to avoid a miscarriage of justice.  The fresh evidence also establishes that the
    science concerning SBS and the triad has evolved to the point where the
    conviction, which was based solely on expert evidence, was unreasonable.  The appellant goes further and submits that
    looking at the other circumstantial evidence, it is clear that the appellant
    did not cause the death of his child.

ANALYSIS

The Guilty Plea

[34]

As this court explained in
R. v.
Hanemaayer
(2008), 234 C.C.C. (3d)
    3 and
R. v. T. (R.)
(1992), 10 O.R.
    (3d) 514, even though an appellants plea of guilty appears to meet all the
    traditional tests for a valid guilty plea, the court retains a discretion, to
    be exercised in the interests of justice, to receive fresh evidence to explain
    the circumstances that led to the guilty plea and that demonstrate a
    miscarriage of justice occurred.  In our
    view, this is one of those cases.  The
    circumstances are compelling.  At the
    time he pleaded guilty, the appellant was facing a charge of second degree
    murder.  He was relatively new to Canada
    and was unfamiliar with the language and the legal system.  At the time of the infants death, his wife
    had just returned from hospital after major surgery for a brain tumour.  He was facing loss of his liberty for at
    least ten years, loss of custody of his remaining child
and  deportation
.  Competent counsel had been unable to obtain
    opinion evidence to refute the opinion of the then leading expert in the
    province that the appellant had intentionally caused the death of his
    child.  Like in
Hanemaayer
, the appellant faced a
    terrible dilemma.  The justice system now
    held out a powerful inducement: a reduced charge, a much-reduced sentence (90
    days instead of a minimum of ten years), all but the elimination of the
    possibility of deportation, and access to his surviving child.  Given the persuasive value of the fresh
    expert evidence that shows that the conviction was unreasonable, this is a
    proper case to set aside the guilty plea to avoid a miscarriage of justice.

The Fresh Expert Evidence

[35]

It is important to place the expert evidence in its
    proper context.  This appeal differs from
    some of the other cases recently heard by this court where an opinion by Dr.
    Charles Smith was at the heart of the case.  The opinion given by Dr. Smith in 1992 was one that would have been
    supported by many other experts and, in fact, was apparently supported by a
    pathologist consulted by the defence at the time.  Medical science has now advanced to a point where
    the existence of the triad of symptoms alone, while suspicious, is not
    diagnostic of non-accidental head injury.   When the appellant was charged and pleaded
    guilty there was nothing but the triad to support the prosecution case of
    intentional infliction of injury.

[36]

There are further particular problems in the
    appellants case.  Based on Dr.
Pollanens
opinion, it may be that the triad was not even
    present, in which case even the suspicion of Shaken Baby Syndrome is not
    supported.  The existence of the old
    subdural haematoma, which probably occurred at birth, is another complicating
    factor.  It is the opinion of one of the
    defence experts that the death could have been caused by natural disease
    processes and their complications, possibly associated with the chronic
    subdural haematoma.

[37]

For the reasons given earlier, this is not an
    appropriate case to resolve the issues surrounding the triad and Shaken Baby
    Syndrome.  Based on the record presented
    in this case and given the concessions by Crown counsel, it is sufficient to
    say that the appellants conviction is unreasonable.  There is no circumstantial evidence to
    support a finding that the appellant was responsible for his childs death and
    the medical evidence is inconclusive.  What evidence there is shows the appellant to have been a loving parent
    who pleaded guilty because of the enormous stress he was under at the
    time.  As appellants counsel put it in
    their factum, the pressure proved too much.  A portion of the appellants affidavit puts the matter well:

My family, including my wife, wanted me to accept
    the Crowns offer.  My wife was still
    recovering from her surgery and could not cope alone with one infant and no
    income.  We all wanted to put my charge
    behind us.  We were all scared of the
    murder charge.  My lawyer told me that we
    did not have any way to challenge the testimony of Dr. Smith.  So I agreed, after much discussion with my
    family, to plead guilty as I did.  It was
    the hardest decision I ever had to make.  I do not want my guilty plea to ever be interpreted to mean that I did
    anything to harm
Gaurov
.  I did not.  My wife knows this too.

[38]

To hold the appellant to his guilty plea in these
    circumstances and given the fresh expert evidence, would constitute a
    miscarriage of justice.

DISPOSITION

[39]

Accordingly, the fresh evidence is admitted, the guilty
    plea is set aside, the conviction is quashed and an acquittal entered.  We wish to thank counsel, Mr.
Lockyer
, Ms. Craig and Ms. Roberts for their extremely
    valuable assistance in resolving this very difficult case.


Signed:           M.
    Rosenberg J.A.

Armstrong
    J.A.

Paul
    S. Rouleau J.A.

RELEASED:  MR
    FEBRUARY 10, 2011


