And Then There Was One: A Final Charles Smith Wrongful Conviction?

Tammy Marie Marquardt has applied for leave to appeal to the Supreme Court of Canada (“SCC”). Her case will surely capture the attention of Canadians who have been following the inquiry into the work of Dr. Charles Smith, the disgraced pediatric forensic pathologist.

Background

Dr. Smith’s questionable work was first brought to light, as recounted in a CBC article, in an April 2007 coroner’s inquiry that reviewed 45 child autopsies in which Dr. Smith concluded that the cause of death was either homicide or criminally suspicious. The review found that Dr. Smith had made questionable conclusions of foul play in 20 of the cases, and 13 of those cases resulted in criminal convictions of individuals for the murder of the children under their care.

Once the review’s findings were made public, the Ontario government ordered a public inquiry into Dr. Smith’s practices. This subsequent Inquiry into Pediatric Forensic Pathology in Ontario was led by Justice Stephen T. Goudge, the substance of which I have previously discussed here. While the crux of this lengthy report consisted of recommendations to improve the province’s pediatric forensic pathology system, Justice Goudge also outlined Dr. Smith’s specific failings, finding that Dr. Smith had “actively misled” his superiors, “made false and misleading statements” in court, and exaggerated his expertise in trials.

This characterization of Dr. Smith is germane to the case of Ms. Marquardt, the only parent in Canada still in prison for a murder conviction due to Dr. Smith’s testimony. In her first interview with Kirk Makin of The Globe and Mail, Ms. Marquardt explained that 14 years ago, while on trial for the death of her 2-year-old son Kenneth, she passed up the opportunity to plead guilty to manslaughter because, as she says, “I hadn’t done anything … [w]hy should I take it?”

As stated in the SCC brief recounting the trial details, Dr. Smith’s testimony was central to the prosecution’s theory that Ms. Marquardt had limited parenting and coping skills. Dr. Smith was also integral to the prosecution by discounting the fact that Kenneth had been treated for seizures in the past, resulting in a significant dilution of the defence’s theory that Kenneth may have died during a seizure. Ultimately, Dr. Smith’s now-controversial evidence, seemingly solid at the time, helped to convict Ms. Marquardt of second-degree murder.

Appeal to the ONCA, and Beyond

Before there was any question as to Dr. Smith’s conduct, Ms. Marquardt launched an appeal to the Ontario Court of Appeal (“ONCA”) in 1998 (see R v Marquardt (1998), 37 OR (3d) 321). Ms. Marquadt appealed on three grounds. She alleged that the trial judge erred in failing to properly direct the jury as to the meaning of reasonable doubt. Secondly, she argued that the trial judge erred in directing the jury that they could draw an adverse inference against Ms. Marquardt’s version of a conversation with a witness because her version had not been brought to the witness in cross-examination. The ONCA dispatched both arguments in one paragraph. Ms. Marquadt’s third ground of appeal was that the trial judge erred in failing to relate the evidence in support of a manslaughter verdict to the elements of that offence.

Finally, Ms. Marquardt argued that this non-direction deprived her of the jury’s effective appreciation of the manslaughter alternative. Though the ONCA considered this ground in more detail, the court still found that the judge’s charge on manslaughter was sufficient, and the appeal was dismissed.

Now, in light of the staggering evidence against Dr. Smith, Ms. Marquardt has the opportunity to launch her appeal on entirely new grounds. Her motion to extend the time to serve and file her application for leave to appeal from the ONCA’s 1998 judgment, and to file a lengthy memorandum of argument, has been granted by the SCC.

Though it is clear that the details of her appeal are still under construction, an affidavit filed with the SCC brief demonstrates that Dr. Smith’s excoriated work will certainly be questioned in this case, as it has in so many others. In the affidavit, Newfoundland’s Chief Medical Examiner dismisses Dr. Smith’s conclusion that Kenneth’s death was due to asphyxia as “wrong and inappropriate.” This view is corroborated by a Finnish pathologist, who stated that Dr. Smith’s conclusions were “illogical” and “against scientific-based reasoning.” Based on this preliminary argumentation, it is safe to say that Dr. Smith’s name will yet again be in the news once Ms. Marquardt’s case reaches the Supreme Court.