SCC orders new trial in Trotta

Today, the Supreme Court of Canada (“SCC”) unanimously allowed the appeals by Marco Trotta and Anisa Trotta in the case of R v Trotta, [2007] 3 SCR 453. This criminal law case, dealing with post-trial expert fresh evidence, has been discussed here at TheCourt.ca on October 10, 2007 by Rebecca Ross.

Marco and Anisa Trotta were accused and convicted of offences relating to the death of their infant son, Paolo Trotta. Marco Trotta was convicted of second degree murder, aggravated assault and assault causing bodily harm, while Anisa Trotta was convicted of criminal negligence causing death and failure to provide the necessaries of life. Following the Court of Appeal’s decision to uphold their convictions, expert opinions became available that discredited the evidence supplied by Dr. Charles Smith, an expert called by the Crown. This new evidence also rendered unreliable the evidence of another Crown witness, Dr. David Chan.

In a short judgment, the SCC allowed the appeals, concluding that a new trial must be held on all counts, thereby finding that it is “unnecessary to consider the issue of post-conviction disclosure raised by the appellants.” The Crown submitted that a conviction for manslaughter should be substituted for Marco Trotta instead of the murder conviction, as the impugned evidence may have affected the jury’s finding on the mens rea, but not the actus reus. The SCC firmly rejected the Crown’s argument, and instead found that Dr. Smith’s evidence may have influenced the jury’s decision on both aspects of the murder charge.

Further, the Crown argued that the new evidence should not affect the other convictions of the appellants. While the SCC acknowledged that the fresh evidence primarily related to the convictions for murder and criminal negligence causing death, they justices agreed that the new evidence still affects, though to a lesser extent, the other counts. As a result, all convictions were set aside, and a new trial ordered for each alleged offence.

The Court of Appeal found that the trial judge committed several errors in his conduct of the trial and in his charge to the jury. He wrongfully admitted some evidence regarding Marco Trotta’s demeanor, made an “inappropriate” remark in his charge to the jury, described causation in an “unfocussed” manner, and erred in his review of Dr. Smith’s evidence. The Court of Appeal, however, found that these errors would not have influenced the outcome or fairness of the trial. Armed with the new fresh evidence, the SCC found that the trial judge’s errors and the Court of Appeal’s conclusion in regards to their affect on the outcome of the trial are now put in a “fresh light.”

In coming to the decision, Fish J. explained:

In deciding that a new trial must be had on all the counts, we bear in mind particularly:

(1) the central importance of Dr. Smith’s evidence to the Crown’s case at trial;

(2) the Crown’s position throughout the trial as to the relationship between the charges;

(3) that the factual error made by the trial judge in his review of Dr. Smith’s evidence was found by the Court of Appeal to be significant, and later repeated;

(4) that Dr. Smith’s evidence is now conceded to be unreliable;

(5) that the Court of Appeal identified several errors made at trial that related not only to the homicide charges, but to the other counts as well;

(6) the fact that the Crown chose to proceed on all the counts against both accused at a single trial — and alleged, moreover, that all five offences had occurred within an overlapping time frame;

(7) that Dr. Smith testified not only as to the cause of Paolo’s death — the basis of the homicide charges — but also as to Paolo’s previous injuries, the basis of the other counts;

(8) that it is impossible to determine what effect Dr. Smith’s evidence (and that of Dr. Chan) had on the jury’s evaluation of the Trottas’ credibility with respect to their out of court explanations as to those injuries;

(9) the fact that these explanations were put into evidence by the Crown as part of its case against the appellants; and

(10) that, understandably, the trial judge did not instruct the jury to limit its consideration of the evidence of Dr. Smith and Dr. Chan to the homicide counts.

He went on further to conclude:

To attempt at this stage to insulate the effect of Dr. Smith’s evidence on one count for its possible effect on others would amount to an unwarranted exercise in appellate speculation.

Dr. Smith’s evidence is obviously unreliable. The plethora of errors revealed by the press in his many pathology reports has been sufficient to launch an official inquiry. While the SCC’s decision is understandable in these circumstances, in a Globe and Mail article, Crown prosecutor Lucy Cecchetto explained that despite the flawed autopsy, the “horrendous abuse” that Paolo suffered caused by Marco Trotta was, according to her, obvious and the jury had “ample other evidence to conclude that baby Paolo was killed by his father – including bite marks, previous fractures and the fact that almost everyone who saw the boy had been alarmed.” This, again according to Ms. Cecchetto, made this case “exceptionally strong” for murder.

If the Crown elects to continue the charges against the Trottas, we shall see if these horrendous allegations are true, or are another mistake by Dr. Smith. Either way, this is clearly a tragic case.