





CITATION:
R. v. Brant, 2011
          ONCA 362



DATE: 20110506



DOCKET: C49835



COURT OF APPEAL FOR ONTARIO



Rosenberg, Simmons and Blair JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Richard Brant



Appellant



James Lockyer, for the appellant



Alison Wheeler, for the respondent



Heard and released orally: May 4, 2011



On appeal from conviction entered by Justice Richard Byers of
          the Superior Court of Justice dated April 21, 1995.



ENDORSEMENT



[1]

In 1995, Richard Brant, who was originally charged with
    manslaughter in relation to the death of his nine-week old son, pleaded guilty
    to aggravated assault. Although he had always maintained that he did not harm
    his son, an important consideration for the appellant choosing to plead guilty
    was the unequivocal opinion of Dr. Charles Smith that the infant had died from
    non-accidental head injury. In the fresh evidence Mr. Brant has explained why
    he pleaded guilty notwithstanding his belief that he was innocent. Moreover,
    there is some doubt that the facts agreed to at the time of the guilty plea
    could support the charge of aggravated assault and we note that the trial judge
    who accepted the plea indicated that it appeared to be the result of a
    compromise.

[2]

The fresh evidence from the Crown and the defence
    experts gathered following the investigation into Dr. Smiths cases cast
    considerable doubt on the validity of his opinion in this case. First, a
    genuine difference of opinion has emerged as to the weight to be attached to
    the existence of the so-called triad of subdural haemorrhage, cerebral
edema
and retinal haemorrhage. Secondly, it appears that
    Dr. Smith was unfairly critical of the work of the pathologist who performed
    the autopsy and considered that pneumonia may have played a material role in
    the death. The loss of important tissue sample should have had a significant
    impact on Dr. Smiths diagnosis of non-accidental trauma. Thirdly, the fresh
    expert evidence now available offers two non culpable explanations for the
    findings of the autopsy, namely idiopathic
cardiorespiratory
arrest or a blood clot in the cerebral sinus.

[3]

In short, the medical evidence is at best inconclusive
    and there is no circumstantial evidence to support a finding that Mr. Brant
    intentionally harmed his son, rather the circumstantial evidence suggests the
    contrary. Finally, Mr. Brant has explained his guilty plea. The conviction for
    aggravated assault was unreasonable. The fresh evidence establishes that a
    miscarriage of justice has occurred. It is in the interest of justice that the
    fresh evidence be admitted, the guilty plea set aside, the appeal from
    conviction allowed and an acquittal entered.

[4]

Mr. Lockyer and Ms. Wheeler we wish to thank you again for
    your assistance in this tragic and difficult case.

M.
    Rosenberg J.A.

Janet
    Simmons J.A.

R. A. Blair
    J.A.


