Wednesday, April 9, 2008

Smith Affected Things In My Life

So I thought I would start to write them all down. Some people think just Austin and Madison and the lost of my son Joshua.

Not even close. Here I will write down everything from the time Joshua passed away to current events.

Tuesday, March 18, 2008

Who is Harold Levy?

Taken from Harold's Blogspot. Please feel free to read around the blog. There is a lot of information posted on his blog.

Who is Harold Levy?

I recently retired from the Toronto Star where I have been reporting on Dr. Charles Randal Smith - a former pediatric pathologist at the Hospital for Sick Children - for the past six years. I intend, through this blog, to periodically report developments relating to Dr. Smith in the context of the on-going public inquiry, the on-going independent probe of cases he worked on between 1981 and 1991, and cases which have been launched, or will be launched in the civil courts. (Postings to begin early in October, 2007) if not earlier. I am currently researching a book on Dr. Smith and would appreciate hearing from anyone who can provide me with useful information. - News - The 'forgotten victims' torn from their homes (2oo8)

The lives of 17 children were changed forever by disgraced pathologist's litany of mistakes

March 09, 2008

Theresa Boyle Staff Reporter


July 2012. This date won't come soon enough for Sherry Sherret.

It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5.

The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.

At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.

The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.

While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.

The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.

One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.

Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.

"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.

In his letters to her, he addresses her as "Dear Sherry."

"That hurts," she says. "But it's understandable."

She signs her letters back, "Love, Mommy Sherry."

Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.

Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.

Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.

In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.

Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.

Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.

"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.

She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.

"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."

Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.

"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.

"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.

Sherret says Christopher doesn't know why she gave him up for adoption.

He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.

While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.

Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.

The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."

In his letters to her now, Christopher asks if she still has Whisper. She does.

Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.

The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"

"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.

As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."

Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.

"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.

"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.

Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.

"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.

Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."

less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.

Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.

Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.

The child was born on Sept. 29, 2005.

For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.

But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.

"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."

Sherret has been diagnosed with major, chronic depression andpost-traumatic stress disorder. "I'm exhausted physically, mentally."

Her children keep her going.

"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.

While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."

She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.

"I would be so happy if I could see them play together," she says.

'I can forgive him as a person, but...' (2oo7)

Posted By Luke Hendry

Sherry Sherret says she's ready to forgive the man who helped put her in jail, but not his actions.

The Belleville mother served eight months of a one-year infanticide sentence after evidence from Dr. Charles Smith contributed to her conviction. Later findings indicated the 1996 death of Sherret's four-month-old son was due to natural causes.

Her case is now scheduled to come before the Ontario Court of Appeal.

Sherret and her family have spent the week in Toronto listening to Smith testify at the public inquiry into his Smith's discredited work as a pathologist.

"I didn't get an apology, but I would have accepted one," Sherret, now 32, told The Intelligencer via cellular phone Friday evening. She and her family were returning from Toronto, but stuck in rush-hour traffic worsened by the day's snowstorm.

In another interview the previous evening, Sherret said Smith's week of testimony was insightful.

"We've learned quite a bit ... about him," she said.

"I can forgive him as a person, but I can't forgive his actions ... It was those actions that put me away. It's troubling to think of why he'd do that in his position, knowing full well he could actually put someone away that didn't do anything.

"My mom told me not to hate people, but hate their actions," she said, noting others should share in the blame.

"It's not 110 per cent his fault. Obviously nobody was watching, and I've stood by that. They would have said, 'This is a problem. It stops now. No more.'

"And we've found a lot of that throughout this week: that there was the lack of upper management watching him."

On Thursday, Smith apologized directly to William Mullins-Johnson, who was convicted wrongly in the death of his niece.

Smith lost his composure while speaking to Mullins-Johnson. Sherret said that was a surprising contrast to the doctor's "scripted" comments earlier in the week.

Sherret said Smith's first attempt at apologizing to the wrongly convicted didn't seem convincing.

"When he says 'sorry' or he deeply apologizes, he looks directly at his lawyer," Sherret said. "Monday seemed like a completely scripted day. As the days progressed, he seemed less scripted."

But even then, she said, Smith gave indirect answers or claimed he did not recall details.

"I'm sitting here thinking, 'How many things do you not remember?' Because this is a lot of people you've caused turmoil for in their lives, and you're sitting up there saying, 'I don't recall most of this.'

"Not once did he ever acknowledge that we were there at all, up until today," Sherret said Thursday, adding it made his sudden show of emotion that much more startling.

"The crying part caught me off-guard for sure."

Sherret said she had hoped to speak to Smith "off-record" to ask him about his work and ask him, "Well, now are you truly remorseful? Because this is the spot you put me in back in 1996."

The inquiry revealed Smith had lied under oath while testifying in past cases as an expert; Sherret said she hopes "there will be some discipline" as a result.

She added she was glad a child advocate was present at Friday's hearing, because it was made clear that children other than those who died had been affected by the pathologist's mishandling of cases. Sherret now has a daughter, but a second son was adopted by another family after her conviction, meaning she can't see him until he's 18.

Sherret said she still gets letters from and pictures of him, but "it doesn't change the fact that I don't get to see him play baseball or anything like that, and that hurts, because I hear he's a pretty good baseball player."

Once the inquiry and her court appeal are over, the Nova Scotia native said she plans to return to that province, where her family still lives.

"I want to go back home. Home is where the heart is, and it's always been there."

Remembering Austin (My oldest son) and Others Take From Us.

This is part of the transcript for February 1st, 2008 in which Ms. Fraser cross examined Mr. Charles Smith on behalf of the Defence for Children International

COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. Falconer. Ms. Fraser...?


MS. SUZAN FRASER: Sir, my name is Suzan Fraser and I'm here on behalf of an organization called Defence for Children International.

DR. CHARLES SMITH: Good morning.

MS. SUZAN FRASER: Good morning. And, sir, you came here and you stated that you have come to appreciate your mistakes, that's correct?


MS. SUZAN FRASER: All right. And throughout your examination and your cross-examination you have identified a number of mistakes, those include
that you were dogmatic?


MS. SUZAN FRASER: You were an advocate?


MS. SUZAN FRASER: You were an advocate for the Crown?


MS. SUZAN FRASER: And you gave confusing testimony?


MS. SUZAN FRASER: And you were disorganised?


MS. SUZAN FRASER: You went beyond your expertise?


MS. SUZAN FRASER: You, at times, saw yourself as a member of the prosecution team?

DR. CHARLES SMITH: Early on I did, yes.

MS. SUZAN FRASER: Yes. And you were profoundly ignorant of forensic pathology?


MS. SUZAN FRASER: And your education was woefully inadequate?

DR. CHARLES SMITH: Those were my words.

MS. SUZAN FRASER: Yes, and they are true?

DR. CHARLES SMITH: I believe they are.

MS. SUZAN FRASER: All right. And it's fair to say that you have told the Commissioner that you've given evidence in other proceedings, both in inquests?


MS. SUZAN FRASER: All right. And those would include some, if not all, of the six (6) systemic inquests held into children's deaths in 1996 and 1997. Do you remember those?

DR. CHARLES SMITH: I -- I certainly was part of the group that worked in the preparation of them. I can't remember now which inquests I actually testified

MS. SUZAN FRASER: All right. And you recall giving evidence at inquests into the death of children though.

DR. CHARLES SMITH: Oh, yes, yes.

MS. SUZAN FRASER: All right. And you also gave forensic pathology evidence or evidence in the nature of forensic pathology evidence in child protection proceedings or Family Court, as it's sometimes called.


MS. SUZAN FRASER: All right. And your - you also worked with the Paediatric Death Review Committee and provided your expertise to that Committee, correct?

DR. CHARLES SMITH: I was a member of that Committee.

MS. SUZAN FRASER: All right. And it's fair to say that the reason that you were a member is because of what at the time was thought of your leading pediatric forensic pathology knowledge; fair?

DR. CHARLES SMITH: I think I've stated the reasons why I presumed that I was asked to be on the Committee.

MS. SUZAN FRASER: All right.


MS. SUZAN FRASER: And it -- isn't it fair to say, sir, that the mistakes -- your mistakes that occurred in the criminal justice proceedings might also be found in those other proceedings, in your work in inquests and your work in the Family Court?


MS. SUZAN FRASER: All right. It doesn't -- it would illogical to say that they --


MS. SUZAN FRASER: -- would not have been repeated there?

DR. CHARLES SMITH: Yes. Yeah. No, I -- if I had made mistakes one place, I can certainly make them in another.

MS. SUZAN FRASER: All right. And you stated that you have come to appreciate your mistakes and have you come, sir, to appreciate the extent of the damage of your mistakes? Do you realize, sir, that children were taken from their parents as a result of your evidence?

DR. CHARLES SMITH: Yes, I've seen that.

MS. SUZAN FRASER: All right. And you're aware that some children, Joshua's brother, for one, was taken from his natural mother and adopted into another
family? You were aware of that, sir?

DR. CHARLES SMITH: I -- I don't know just how specific my knowledge of that was but I -- but it was my understanding that he -- he was taken away but I couldn't tell you what the decision on him was.

MS. SUZAN FRASER: All right. Sir, if you're interested in that information, --


MS. SUZAN FRASER: -- you'll find it in the overview report on Joshua. I won't take you there now.


MS. SUZAN FRASER: Sir, and you're also aware that Sharon's sister, who was three (3) years old at the time of her death, was adopted, and that her mother felt she had no choice because her prospects to contest an application, because her prospects for being released were so remote? You're aware of that, sir?

DR. CHARLES SMITH: I -- I have some knowledge of that, yes.

MS. SUZAN FRASER: Right. And you would know that from the statement of claim filed against you, sir?

DR. CHARLES SMITH: I -- I couldn't tell you the source but I recognize that.

MS. SUZAN FRASER: All right. And, Commissioner, I won't take you there now, but for the record, that's found at PFP116230. We know that Jenna's sister was in the care of the Children's Aid Society for almost two (2) years; you're aware of that?

DR. CHARLES SMITH: I -- I have some knowledge. The specifics, I -- as your two (2) years, I'm --

MS. SUZAN FRASER: All right.

DR. CHARLES SMITH: -- I -- I can't remember. But, yes, I recognize that.

MS. SUZAN FRASER: These children are also deserving of an apology, are they not, Dr. Smith?


MS. SUZAN FRASER: All right. And can you assist, sir, can you assist with providing us information on how many times you might have either assisted with an investigation of a Children's Aid Society or prevented -- presented evidence in Court either by affidavit or viva voce evidence?

DR. CHARLES SMITH: How many times?

MS. SUZAN FRASER: How many times, sir?

DR. CHARLES SMITH: I would have to be case specific. I did in Kingston in the Paolo case or -- or the case that involved Paolo's brother.

MS. SUZAN FRASER: All right. Sir, I'm not -- I'm not --

DR. CHARLES SMITH: Okay. I -- I'm, yeah, I'm not trying to waste your time here. Yes.

MS. SUZAN FRASER: I'm -- I appreciate that, sir, but I want to --


MS. SUZAN FRASER: -- just clarify the focus of my -- my --


MS. SUZAN FRASER: -- question. I think we have certain information about the cases before the Commissioner, --


MS. SUZAN FRASER: -- the twenty (20) cases here.


MS. SUZAN FRASER: And what I'm interested in, sir, --


MS. SUZAN FRASER: -- is that there would --

DR. CHARLES SMITH: -- beyond those. Yeah.

MS. SUZAN FRASER: Exactly. And you'll agree with me that there were times that you gave evidence where there -- in a -- in a child death where -- matter, where there was no underlying criminal proceeding? You're aware of that? You'd agree with me on that?

DR. CHARLES SMITH: Yes. I can think of maybe three (3) or four (4) instances, yes.

MS. SUZAN FRASER: All right. And so in the years that you provided forensic pathology services in the province of Ontario, can you give us a number as to how many children's lives you might have affected?

DR. CHARLES SMITH: In addition to the --


DR. CHARLES SMITH: -- ones here?


DR. CHARLES SMITH: The...I think it would be perhaps three (3) or four (4), but I could -- I could well stand corrected because -- oh, well actually those were, I shouldn't say children, those were the instances that I can think of where I was asked to present an autopsy or to give a second opinion on an
autopsy. Whether there was one (1) child or more than one (1) child is something that I -- I wouldn't necessarily know. But certainly families, I would say, I can think of three (3) or four (4).

MS. SUZAN FRASER: All right. And that would include, you mentioned the win's case, the twins who died in --

DR. CHARLES SMITH: That -- that --

MS. SUZAN FRASER: -- 1982?

DR. CHARLES SMITH: That would be one of them, yes.

MS. SUZAN FRASER: That man went on later, after maintaining his -- his innocence for many years, later went on to have another child? Another --

DR. CHARLES SMITH: That's my understanding.

MS. SUZAN FRASER: All right. And, Commissioner, you will find that in our documents, I won't turn it up, but it's one of the documents that's before you as part of the -- it's at Tab 1 and 2 of the Parties With Standing Overview, Volume I. Sir, and in terms of your bias, sir, sorry, just moving back. In -- in terms of those three (3) or four (4) cases, are -- going forward, sir, are you
prepared to help identify, should there be a need to examine those cases, are you prepared to help identify those cases so those children can perhaps one day be reacquainted with their natural parents?

DR. CHARLES SMITH: I -- if -- if there is a -- a reasonable and proper role for me to do that, yes. Yeah, I -- I would -- if I could help fix a wrong and it was appropriate to do that then, yes.

MS. SUZAN FRASER: Thank you, sir. And, sir, you have come here and talked about your close relationship being -- in the early days most certainly being part of the prosecution team, being invested in that role?

DR. CHARLES SMITH: In the 1980s, yes.

MS. SUZAN FRASER: All right. And is it fair to, sir -- say, sir, that -- that there are similar close working relationships in the Paediatric Death Review Committee and the Death Under Five Committees or the Death Under Two Committee, as it once were, in those committees you worked closely with police, CAS representatives, doctors, Crowns?

DR. CHARLES SMITH: Well, the -- the committee is made up of a number of experts who come along with different viewpoints and then individual cases are discussed --


DR. CHARLES SMITH: -- and ultimately a consensus or recommendations are -- are made by the committee.

MS. SUZAN FRASER: All right. So you're all working together. You're sort of working on the same side?

DR. CHARLES SMITH: Well, we are. In -- in the CAS cases those were ones where the -- apart --where the medical people were -- were usually quite silent --


DR. CHARLES SMITH: -- because they have no expertise or knowledge or may -- they may not have any insight, so, those were -- those would be the discussions and the decision making in those would be -- would -- would reflect the issues that are inherent in those --


DR. CHARLES SMITH: -- whereas if it was a complex medical case that did not involve CAS then, obviously, the discussions are going to go on in different -- on a different way but at the end of the day, Dr. Cairns' job as -- as Chair was to distill all of the information and then go forward with whatever --whatever an appropriate decision-making process reflected.

MS. SUZAN FRASER: Sir, and the -- the CAS cases, those would include where there's an open file, somebody's under the supervision of CAS' care and that might either be in the care of their parents or in another facility operated by the state like a group home or foster care?

DR. CHARLES SMITH: Yes, that's right.

MS. SUZAN FRASER: All right. And is it

COMMISSIONER STEPHEN GOUDGE: You're running out of time, Ms. Fraser.

MS. SUZAN FRASER: I'm -- I'm very close to finishing if I may, Mr. Commissioner?

COMMISSIONER STEPHEN GOUDGE: One (1) or two (2) more questions.


MS. SUZAN FRASER: Thank you. And one (1) of the things that you talked about in terms of working with the coroner's office was getting your ducks in a row. Was there a similar attitude in the PDRC?



DR. CHARLES SMITH: Never. No. No. I never sensed that at all. The PDRC was usually a look- back to see what went wrong, if anything, and trying to understand looking back to see the mistakes that happened as opposed to -- as opposed to go through all of the information so that a Crown attorney could -- the ducks in a row refers to a Crown attorney understanding the strengths and --


DR. CHARLES SMITH: -- weaknesses of -- of various medical opinions.

MS. SUZAN FRASER: All right but is it fair to say and I'm almost finished --


MS. SUZAN FRASER: -- Mr. Commissioner, if I may but it's important to my client that where -- you -- you indicated in the CAS cases you deferred to the
CAS representatives --


MS. SUZAN FRASER: -- on the committee. Is that -- was that your evidence, sir?


MS. SUZAN FRASER: All right.

DR. CHARLES SMITH: In the CAS cases I don't think there was -- in the cases that came forward, I can't ever remember pathology issues that I could speak to in -- in any significant way.

MS. SUZAN FRASER: All right. Thank you, sir. Those are my questions.

COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. Fraser. We will rise then for fifteen (15) minutes and come back with you, Mr. Gover.

My Apology (Sort Of) (2oo8)

TAKEN FROM JANUARY 28th, 2008 Transcript from the Goudge Inquiry.

During the Inquiry this day all apologies were said where he felt they needed to go. Each apology was said facing his lawyer Ms. Langford not those that he was apologizing too.

I said to the reporters "His apology is not sincere. If he meant it he would have looked at us the ones he affected who were all sitting in the Inquiry Room at that time. Not once did he make any effort to look at us."

MS. JANE LANGFORD: The reviewers, Dr. Smith, concluded that the cause of death should have been labelled "undetermined," but they also opined that Joshua likely suffocated accidentally as a result of his unsafe sleeping arrangements. Did you consider that as a possible explanation for Joshua's death at the time?

DR. CHARLES SMITH: Well, I did; I -- I recognized that unsafe sleep environments were a possible cause.

Certainly at that time I was aware that things like waterbeds were -- were dangerous or a potentially dangerous sleep environment, and the -- the knowledge or understanding of an unsafe sleep environment was growing. But I don't believe at the time that I authored this report I -- I understood that his specific sleep environment was as dangerous as it -- as it could have been, and I believe that I focussed more on the findings that were more suspicious, leg fracture and skull fracture, as opposed to the possibility of this environmental risk.

MS. JANE LANGFORD: And before we leave this case, Dr. Smith, is there anything you wish to add?

DR. CHARLES SMITH: Yes. I deeply regret the -- the diagnostic error that I made and the confusion that is attendant upon it. I understand that it has caused problems for the investigators and for the judicial system, but most importantly, it has caused a significant problem for Joshua's family and Joshua's mother, and for that, I -- I am truly sorry.

Sunday, February 10, 2008

The Charles Smith Blog - Joshua's Case Part 4 (2oo7)

Wednesday, November 21, 2007
Goudge Inquiry: Joshua's Case: Part Four; Notable Quotes From External Reviewer's Report;

Dr. Jack Crane reviewed Joshua's case:

Here are some notable quotes from his "Expanded Report;"

On Dr. Smith's finding of "asphyxia":

"The autopsy report prepared by Dr. Smith was quite detailed but is lacking any form of discussion or conclusion as to how the diagnosis of asphyxia, as the cause of death, was determined...Furthermore, a diagnosis of asphyxia is vague and non-specific and should properly be provided in the context of the mechanism by which it was produced, e.g.compression of neck.""

On Dr. Smith's interpretation of the significance of certain petechia haemorrhages:

"The finding of petechial haemorrhages (pinhead=sized) spots of bleeding on the surfaces of the internal organs is a common finding in all types of infant deaths and is of no significance whatsoever."

On Dr. Smith's testimony:

"It is my view that parts of Dr. Smith's testimony to the court were misleading. Whilst he does concede that he cannot be sure of the cause of death he uses, what I consider to be inappropriate language, terms such as "If I was a betting man, I would bet that it was. (Reference to death being non-accidental);.

He also commented "I am certainly suspicious of that". (Referring to suffocation);

Also in his testimony he makes reference to neck haemorrhage as being worrying and would increase the likelihood of a non-accidental etiology whereas in my opinion this was no more than an artefactual finding. (Inflicted on the body during the autopsy. H.L.);

On the so-called skull fracture Dr. Smith discovered after completing his post-mortem report;

"There is, in my opinion, no evidence of any fracture."

(See previous postings: The Joshua case: Part One: How Smith caused havoc by failing to deliver a crucial forensic report; The Joshua case: Part Two: Yet another disturbing tale of important forensic evidence lost by Dr. Charles Randal Smith;)

The Joshua case: Part Three: Aftermath of a flawed opinion;)

Harold Levy:;

The Charles Smith Blog - Joshua's Case Part 3

Tuesday, November 20, 2007
Goudge Inquiry: Joshua's Case: Part Three; Aftermath Of A Flawed Opinion;



On January 4, 1999, something happened that should never happen in Canada's criminal justice system.

Sherry Sherret not guilty to infanticide but was found guilty based on the evidence from Dr Charles Smith.

Dr. Smith's opinion was at the heart of the Agreed Statement of Facts read into the court record;

The Agreed Statement reads:

"Dr. Charles Smith performed an autopsy on the baby at the Toronto Hospital for Sick Children.

He determined the cause of death to be asphyxia.

He ruled out mould or disease as a cause of death.

Pinpoint hemorrhages in the tissue of the eyelids, sometimes present in non-accidental asphyxia were not found in the case.

Dr. Smith was highly suspicion that the death as non-accidental, but there were no overt signs of violence upon which to make a conclusive finding."

"A microscopic skull fracture was discovered months after the original post mortem," the Agreed Statement of Facts continued.

"It was not initially visible to the pathologist."

Dr. Smith testified at the preliminary hearing that this skull fracture could have been caused on either an accidental or non-accidental basis and was not the cause of death.'

One can only imagine what Sherret felt when she heard Justice Byers utter the fallowing words before sentencing her to one year in jail followed by two years probation.

"To this day, I do not understand why she did it," he began.

"There is no doubt that looking after Joshua was very stressful for her; and it would seem that there were warning signs that were there to be seen

But at the end of the day only she knows what she did, and shy she did it.

And she is not telling." denies her guilt and shows no remorse," Byers continued.

"Her support system in the community - her family, her friends - reinforce that position.

Joshua did not die because his mother was suffering from some sort of post-partem depression.

His death, perhaps, is connected the fact that Sherry suffers from what the doctors have called a mixed personality disorder.

Or perhaps not.

No doubt, though, her attitude towards this tragedy is connected to that diagnosis."

We are now aware that Dr. Smith's opinion was terribly flawed.

There was no ashphyxia.

There was no skull fracture.

There was just an innocent grieving mother who had lost her son due to a natural but unexplained death; (One possibility is that Joshua accidentally suffocated during his sleep.)

I sometimes wonder how judges feel on learning that they have passed sentence on an innocent person - and the words they have said on passing sentence are seen in a different light.

In fairness, the judge usually has no information on the case except that which is provided by the parties at the particular time.

The one year prison term -sentencing was left in the hands of the judge - was not the only punishment meted on Ms. Sherret in the aftermath of Dr. Charles Randal Smith's flawed opinion.

Byers also placed her on probation for two years, saying:

"You are not to be in a parental position towards infant children; and,

"If you get pregnant, you must immediately report that to a probation officer."

We learn from an Overview Report on the case prepared by Commission staff that Sherret had a third child in September, 2005 - and that on the basis of her conviction for infanticide the local Children's Aid Society applied for an order removing her from the family home in order to prevent her from living with her new child.

The Report includes a letter "To whom it may concern" drafted by Bruce Hillier, Sherret's lawyer, to assist her with the family court proceedings;

"Faced with the prospect of a conviction and all that flows from that, I vigorously represented Ms. Sherret and at the 11th hour, the Crown's office, no doubt for good reasons, elected to resolve the matter by way of a plea for the rarely used charge of infanticide, the basis at the time, Sherry was suffering from post-partem depression," Hillier wrote;

"The compromise between the Crown and the defence was seen as a way out for both sides - the Crown fearing they couldn't get a conviction of any kind and the defence fearing that a conviction for murder, while not justified, would result in a lengthy period of incarceration."

Sherret then turned to the Association In Defence of the Wrongly Accused for assistance.

Lawyer James Lockyer wrote former Chief Coroner Dr. Barry McLellan, that a review by his office of Joshua's death "acquires huge importance" because Sherret, having lost one child to adoption, now faced loss of her daughter.

"Ms. Sherret has two other children," Lockyer wrote.

"Her first born...was taken away from her at the age of eighteen months after her arrest in March 196 for Josh's murder.

(He) was subsequently put up for adoption, and now lives with his adoptive parents in Cobourg;

Ms. Sherret has written contact with him every year at Christmas and his birthday,

(He) is now 12 years old.

Her third now five-months old.

Ms. Sherret, (the child's father and (the child) herself live together at their home in Belleville.

By Court order, Ms. Sherret has not been allowed to be alone at any time with her daughter since her birth;"

Lockyer stressed that a review was imperative because, "if Joshua died of natural causes, as AIDWYC believes he likely did, (and the Chief Coroner's review confirmed: HL) Ms. Sherret may be about to become the victim of a third miscarriage of justice."

"(Her daughter) will become one too."

Finally, on April 5, 2007, the Children's Aid Society applied in Court for an order terminating the existing supervision order.

A child protection worked candidly noted in an affidavit filed with the Court that, "Following the completion of the parenting Capacity Assessment, it was noted that (Sherry's) denial of any wrongdoing was concerning and further, made it impossible to treat her."

(See previous posting: Mullins-Johnson: Dilemma of the innocent;)

"However, it is now believed that (Sherry) may not have done anything wrong.

AIDWYC is now pursuing quashing of the infanticide conviction and an acquittal for Ms. Sherret in the Ontario Court of Appeal;

Lawyer Hillier cogently summed up this case in his letter "to whom it may concern" referred to above.

"Some cases come back to haunt you and this is one of them," he said.

(See previous postings:
The Joshua case: Part One: How Smith caused havoc by failing to deliver a crucial forensic report;

The Joshua case: Part Two: Yet another disturbing tale of important forensic evidence lost by Dr. Charles Randal Smith;)

Harold Levy;

The Charles Smith Blog - Joshua's Case Part 2

Monday, November 19, 2007
Goudge Inquiry: Joshua's Case: Part Two: Yet Another Disturbing Tale of Important Forensic Exhibits Lost By Dr. Charles Randal Smith;



Earlier postings on this Blog demonstrated how Dr. Smith had violated his responsibility to preserve forensic evidence in four murder cases;

0: Misplacing all of the forensic exhibits in the Trotta case - so that they were unavailable for trial and appeals; (See previous posting: Trotta: Another Smith Case Involving Misplaced Evidence;

0: Retaining without submitting for analysis a dark, curly, male pubic-type hair indicating that Baby Jenna may have been sexually assaulted in the Brenda Waudby case; (Discussed in Trotta posting referred to above);

0: Misplacing the only evidence that could be used to prove that William Mullins-Johnson did not kill his four-year-old niece. (See previous posting: Mullins-Johnson:: Evidence allegedly misplaced;)

As if this disgraceful, unprofessional conduct was not enough yet another loss of key forensic exhibits has been revealed in the "Overview Report" of Joshua's case; (See previous posting: Goudge Inquiry: Joshua's case; Part One: How Smith caused havoc by failing to deliver a crucial forensic report);

The loss of exhibits in the Joshua case is described by Sheila Walsh - the Crown Attorney who prosecuted Sherry Sherret (Joshua's mother) for first-degree murder - in a letter to Ed Bradley, who was prosecuting Louise Reynolds at the time.

Walsh, now deceased, explains to Bradley that the mother's defence lawyer was pressing for the microscopic slides from the autopsy because Smith had come up with damning information against his client - the discovery of a skull fracture - after signing his autopsy report.

"The defence retained their own pathologist and obtained an order for the release of the autopsy slides, on certain conditions, to the defence expert for a second opinion," Walsh wrote.

"We worked out a plan to have the slides delivered.

The slides did not get delivered.

Again, Dr. Smith ignored my slides and letters;

Finally, I found out that he had lost the slides;

They remained lost for a period of time, but they were eventually found they had not been found, our case would likely have been at an end.

Some x-rays were also lost and were never found. I don't know if this was Dr. Smith's fault or if it was someone else's;

Given what happened in this case, (being forced to offer a plea to infanticide because of the deficiencies in Dr. Smith's work H.L.) I was very surprised that Dr. Smith then lost important evidence in the (Sharon) case;

After the experience in the (Joshua) case, I would have expected Dr. Smith to be more careful with evidence in homicide cases;"

We know, however, that no one ever stepped up to the plate to protect the public by containing Dr. Smith when loss after loss occurred;

0: Prosecutors kept on calling him to testify against other unfortunate accused persons;

0: The chief coroner's office allowed him to continue running his one-man show - without any apparent interference or accountability, and,

0: There are no indications that the Hospital for Sick Children ever took him to task for the shoddy way in which he was heading the Pediatric Forensic Pathology Unit which had been entrusted to the hospital by the Ontario government;

We are now aware that the Hospital failed to set up a system for tracking, cataloguing and protecting forensic exhibits sent to the Pediatric Forensic Pathology Unit (created in 1981) for consultation purposes by coroners and pathologists elsewhere in the province until December, 2004.

That's around the time that Dr. Barry McLellan, the former chief coroner, began to probe the missing Mullins-Johnson exhibits.

Documents filed at the Inquiry indicate that McLellan's investigators - assisted by hospital staff - spent days cleaning up Dr. Smith's office before ultimately locating the missing evidence on top of Dr. Smith's desk.

(The small, dark, curly, male pubic hair that Dr. Smith retained in his possession for years in the Waudby case - without informing police or prosecutors or submitting it for forensic testing - had been kept in one of Dr. Smith's desk drawers.)

The disorder in Dr. Smith's office must have been apparent for years to all who entered it or worked there - yet Dr. Smith's Superior's in the Hospital administration apparently did nothing about it.

Nor can the famed hospital claim ignorance: There were too many media reports of controversies over Smith's handling of exhibits, going back to the Reynold's case, over the years.

On May 31, 2005, after the Star reported that the missing Mullins-Johnson exhibits had been found in an envelope on top of Dr. Smith's desk during a review of exhibits launched in April ran a revealing interview with Hospital for Sick Children spokesperson Helen Simeon.

Simeon said Smith agreed to go on an administrative leave pending a review by an “outside” pathologist after it became public that the materials in the Mullins-Johnson case were missing.

She said Smith was allowed to return after the reviewer reported that Smith was doing a satisfactory job.

The Hospital would not name the reviewer or release the report;

I wonder if that internal report will surface at the inquiry!

Given the importance of preservation and continuity of evidence - especially in an era where DNA analysis and other sophisticated scientific processes may help clear or incriminate individuals decades later - the Hospital clearly let the public down and has much to account for at the Goudge Inquiry;

Dr. Smith was a member of the pathology department - and that department was headed by chiefs of pathology over the years who in turn were supposed to be responsible to the top levels of the hospital hierarchy.

If the public is to regain confidence in the delivery of pediatric forensic service in the province it is crucial for the Inquiry to probe why Dr. Smith's superiors at the Hospital for Sick Children failed to reign him in.

Harold Levy;

The Charles Smith Blog - Joshua's Case Part 1

Monday, November 19, 2007
Goudge Inquiry; The Joshua Case: Part One; How Smith Caused Havoc By Failing To Deliver A Crucial Forensic Report;



The "Joshua" case involves a woman charged with first degree murder after Dr. Charles Smith came up with a diagnosis of "Asphyxia" in his autopsy report - and later informed the prosecutor, (Ms. Sheila Walsh), that he had detected a "skull fracture."

This Blog detailed the havoc caused in the Kporwodu and Veno case when Dr. Smith failed to produce urgently required forensic reports to anxious police and prosecutors. (See previous posting: (Kporwodu and Veno: Judge "shocked" by Smith's delay in producing post-mortem report.")

Now we learn - from a letter included in the "Overview Report" prepared for the Inquiry by Commission staff - that Smith's failure to provide an essential report caused similar havoc in Joshua's case.

The letter is from prosecutor Walsh to a colleague named Ed Bradley who was prosecuting Sharon's mother at the time.

"Dr. Smith initially prepared an autopsy report which said there was no injury to the baby's skull," Walsh said in her letter.

"He then later called to say that upon re=examination of the autopsy slides, he discovered a skull fracture.

Again, I requested a written report concerning this fracture, and again he would not provide it.

(We were not depending on Dr. Smith to prove the cause of death, but rather to rule out certain things.)

The presence of the skull fracture was, of course, extremely important to the case,

Again, I never did get a report about this.

Dr. Smith is very quick to condemn other pathologists who miss things during the post mortem.

Of course, this opened the door for the defence to say he could have missed other things.

Walsh eventually agreed to allow Sherry Sherret, (Joshua's mother) to plead guilty to infanticide. (More about that plea in a future posting);

She tells Bradley that, "while there were a number of considerations that went into that decision (to agree to the plea), one significant one was my experience with Dr. Smith."

This horror story gets even worse - when we learn from the external examiners reviewing Dr. Smith's work that Dr. Smith's opinion was terribly flawed;

In short:

No evidence to support a diagnosis of asphyxia;

No evidence to support Dr. Smith's observation of a skull fracture;

No definitive cause of death revealed by the autopsy findings;

Nothing but a possibility, suggested by the position in which Joshua's body was found, that he had accidentally suffocated while sleeping;

NEXT POSTING; Goudge inquiry: Joshua's case; Yet another example of Dr. Charles Randal Smith losing important forensic exhibits in a murder case;


Arctic coroners comb files for flawed autopsies (2oo7)

Arctic coroners comb files for flawed autopsies

The Globe and Mail

Friday, 27 April 2007

By Katherine Harding

Canada--Nunavut and Northwest Territories chief coroners are voluntarily searching their autopsy files dating back to 1981 to find out whether disgraced Toronto pathologist Charles Smith worked on any of them, The Globe and Mail has learned. "If Dr. Smith's fingerprints are on any of these files, then we will dig them out and see what they are," Northwest Territories Chief Coroner Percy Kinney said of the internal audit that was launched this week. "It's got to be done."

There is concern that Dr. Smith may have worked on some of these cases because it is standard practice for autopsies from the Eastern Arctic to be sent to the coroner's office in Toronto for examination because of Nunavut's lack of staff and facilities. Prior to 1999, the year Nunavut was created, the Northwest Territories also routinely sent autopsies originating in the Eastern Arctic to Toronto.

Earlier this week, the Ontario government announced it would hold a full public inquiry into the work of Dr. Smith. A panel of experts recently questioned the pathologist's findings in 20 of 45 autopsies they reviewed. In many of the cases, dating back to 1991, individuals were charged and convicted of criminal offences related to the deaths. Other cases did not result in convictions.

Dr. Kinney said the audit will be a lengthy process that could take months to complete because files will have to be searched manually.

He said there are plans to review files that involved deaths of people 16 or younger, who lived in the Eastern Arctic and had their autopsies sent to Toronto from 1981 to 1999.

He said that if Dr. Smith's name turns up on any of those autopsy reports, the autopsy itself will be reviewed and the body could be exhumed for further investigation.

Nunavut Chief Coroner Tim Neily said he has personally been searching autopsy files since details about Dr. Smith's mistakes were made public last week.

"As far as I know," Dr. Neily said, "he hasn't been involved in any cases, but it is being looked at just in case."

Meanwhile, a second autopsy performed on an Ontario baby whose mother was convicted of killing him has uncovered evidence that the child had pneumonia, a report by an international team of pathologists who reviewed the work of Dr. Smith says.

The evidence of pneumonia appears to reinforce the probability that the baby, Joshua Sherrett, died of natural causes.

Sherry Sherrett was convicted of infanticide in 1999, based partly on Dr. Smith's testimony that Joshua had a skull fracture and suspicious neck hemorrhages. Ms. Sherrett served a one-year jail term.

Her conviction came into serious question last year after the province's top pathologist, Michael Pollanen, exhumed Joshua's remains and conducted a second autopsy.

He found that what Dr. Smith took to be a skull fracture was apparently nothing more than a normal anatomical feature. Moreover, the neck hemorrhages that Dr. Smith had testified were cause for "consternation" appear to have been caused by a scalpel used at the autopsy.

The members of the review panel, in turn, scrutinized Dr. Pollanen's findings as well as original photographs and case samples, adding a few observations of their own. One of the panel members, Irish pathologist Jack Crane, noted that the presence of cells was indicative of bronchopneumonia, James Lockyer, Ms. Sherrett's lawyer, said.

The pathologists' report has not been released, but lawyers for some of the people involved in the cases have copies.

Mr. Lockyer was reluctant to release his copy, but quoting it concluded: "The presence of inflammatory changes in the lungs may represent an early respiration infection, which could have contributed to sudden and/or unexpected death."

"That fits right in with Sherry having taken Joshua to the hospital in the weeks before his death because he was short of breath and she was worried about his health," Mr. Lockyer said in an interview. "It is an important piece of the puzzle.

"Joshua may have had a respiratory infection that could have contributed to his sudden and unexpected death through accidental suffocation in his crib. If you have already got a respiratory infection, you are much more prone to suffocate."

Saturday, February 9, 2008

Falsely Accused A Mother Fights Back - December 2007 Chatelaine

Authored by Derek Finkle 2007

For a few weeks this past spring, Sherry Sherret was probably the most interviewed stay-at home mom in Canada. After she was the focus of a big press conference in Toronto on April 23, a steady stream of reporters began knocking on the door of her small apartment in Belleville, Ont. There, they would meet the round-faced 31-yearold brunette at the centre of one of Canada’s most explosive legal dilemmas.

Inside Sherret’s apartment, these reporters would chat with her talkative, saucer-eyed 19-month-old daughter, Madison, or fight for a spot to sit with Sherret’s three cats. If they spied her stereo equipment, they might strike up a conversation about Sherret’s discjockeying company. Under different circumstances, these exchanges would seem like banal pleasantries, but in Sherret’s world, the simple presence of her child or the reminder of a sideline pursuit was infused with an almost suffocating weight.

Almost 12 years ago, Sherret was charged with the murder of her four-month-old son, Joshua. Her life was torn apart: Police officers and Crown attorneys scoffed at her proclamations of innocence. The Children’s Aid Society (CAS) took her other son, Austin, then 20 months old, away from her. One of the country’s most reputable pathologists testified in court that he’d bet the house that she’d killed her child. Assessments filed by four different psychologists and psychiatrists claimed Sherret suffered from a wide variety of personality disorders, though they largely disagreed on precisely which ones. No one seemed terribly surprised when Sherret was sent off to prison for a year.

Which explains why so many of these visiting journalists were somewhat taken aback to watch her laugh and play with Madison like any happy mother. Or why they were surprised if Sherret showed them a presentday baseball-team photo, sent by the adoptive parents of Austin, now 13, whom she hasn’t seen in eight years, without shedding a tear. Overall, these reporters could only marvel at how level-headed, articulate and downright cheery Sherret was while answering some terribly difficult questions.

But what they were just beginning to understand was that Sherret and those around her had been hit by one of the biggest wrecking balls ever to smash its way through the Canadian justice system. Since those early dark days of grieving, she has endured a prolonged family nightmare that is, in many ways, completely unfathomable. And now, in an effort to clear her name, she will be forced to relive it all again.

“I did not kill Joshua,” Sherret will say to her media visitors and, later, to the courts. Sherret isn’t a small woman – she doesn’t have a problem referring to herself as “a big girl” – but her voice is as soft and delicate as a pixie’s. “What I want most of all now is for my other children, Austin and Madison, to know that I loved their brother and had nothing to do with his death. And to do this, all I ask for from the justice system is the opportunity to appeal my conviction.”

Baby Jos hua spent much of the four MONTH S of his life in tears. Even the moment after he was born on September 23, 1995, Sherret thought he looked an unhappy shade of purple. The nurses in the delivery room said he was just cold, and they took him away to lie under a heat lamp for a few hours. It didn’t seem to do much good, though. He cried almost incessantly from the moment he was back in her arms. Even when Sherret arrived back at her basement apartment (she lived then in Trenton, Ont., just west of Belleville) after being discharged from the hospital, little Joshua was still screaming non-stop Weeks went by, and he never managed to sleep for more than a couple of hours a day. Equally disconcerting was the fact that the baby also tended to throw up much of what he ate.

It was a lot to handle for a 20-year-old single mother who already had Austin, then a toddler, to keep her eye on. Peter Robinson, Sherret’s boyfriend and Joshua’s father, helped out as much as he could, but he still technically lived at home with his parents while going to school at a nearby college. Austin’s father lived in Nova Scotia, which Sherret’s family had left in 1993 when her father’s military posting was transferred to the base in Trenton, and was out of the picture.

Sherret took Joshua to various doctors and clinics, and even to the emergency department at the hospital on at least a half-dozen occasions throughout the fall and early winter, worried about his crying, vomiting and lack of sleep and how he sometimes seemed to have trouble breathing. She bristled every time a doctor told her that apart from Joshua’s nose being stuffed up, he seemed perfectly normal.

“I got tired of hearing people say, ‘He’s just being a normal baby,’” Sherret would recall later, when the journalists came calling. She might have had a Grade 9 education, but she knew children. “I had Austin, and he wasn’t like that. I’d babysat plenty of newborns, and none of them had ever been like Josh. What are the odds of one baby being completely different from any other child you’ve ever seen?”

On the evening of January 22, 1996, two weeks after the last of these medical appointments, Joshua was having a worse-than usual vomiting session. Robinson finally got Joshua to sleep after a prolonged bout of cradling and comforting. Joshua never seemed to stay asleep for long in his bassinet or his crib, so Robinson put him down in the playpen, on top of a sleeping bag folded several times underneath him, with a comforter and a few blankets on top.

Sherret gave the baby his last bottle shortly after midnight and returned to bed. At about 5:30 a.m., she heard some gurgling noises over the baby monitor, but no crying, so she and Robinson stayed in bed. They didn’t wake up again until 8 a.m., which was a shock for both of them, as Joshua had never slept through the night like that. Sherret checked on him first. When she reached the playpen, she saw that his body had gone stiff and that he wasn’t breathing. Sherret had been trained in CPR, but the shock of seeing her baby lying there dead had rendered her completely incapable. She yelled for Robinson and then ran out of the apartment, banging on her neighbours’ doors, screaming as loud as she could for help.

Finally, one of Sherret’s upstairs neighbours let her in and called the police. The two women then ran back down to Sherret’s apartment. Sherret was hysterical, sobbing and shrieking the same words over and over: “My baby’s dead.” The neighbour told her to hang on; an ambulance was on its way. At the hospital, doctors worked to revive Joshua; after half an hour, Sherret was told his colour was coming back. Fifteen minutes later, though, medical staff emerged to say he was gone.

The investigating coroner later told Sherret that sudden infant death syndrome (SIDS) might have been the cause of her son’s death but an autopsy at a Belleville hospital had been ordered. Then, during a routine X-ray beforehand, a fracture was detected in Joshua’s left ankle. As a result of the fracture – and the implication of possible abuse – Joshua’s body was transferred to the Hospital for Sick Children in Toronto. There, a full autopsy would be conducted by Dr. Charles Smith, arguably Ontario’s leading forensic pediatric pathologist. A month later, the police would ask Sherret and Robinson to come in for questioning.

Sherret and Rob inson endured lengthy individual interrogations. Soon after, a police officer, accompanied by representatives from the local Children’s Aid Society, arrived at their door to remove Austin from their home. “I just wanted to die,” Sherret now recalls. Both of my children were gone. That was my family. It just tore my heart out.” Then, on March 27, 1996, Sherret was charged with the first-degree murder of Joshua. Once Sherret posted bail, after a week in jail, she saw Austin as soon as she could. He’d been placed with a foster-care family, and Sherret was allowed two one-and-a-half-hour-long supervised visits with him per week. “I told him that Mommy and Daddy had some bad problems they had to fix,” Sherret says. “I said it was better for him to stay with the family he was living with now, and then once Mommy and Daddy’s problems were over, he could come back to live with us.”

It took almost two years for the preliminary hearing to begin, in January of 1998. The star witness was Dr. Charles Smith. When the dapper and bespectacled pathologist stepped into the witness box, Sherret could tell that everyone in the courtroom, including the judge, was impressed. Sheila Walsh, the Crown attorney prosecuting Sherret, wasted no time eliciting Dr. Smith’s opinions, many of which were infused with flurries of complicated medical terminology.

Dr. Smith told the court that his observations led him to conclude that Joshua had been intentionally suffocated or smothered by someone. To back up this theory, he pointed to some microscopic hemorrhages he’d observed on Joshua’s neck. Dr. Smith said these had occurred “either right around the time of death or in a short period of time prior to death,” which, he testified, precluded a diagnosis of SIDS as the cause of death. He also felt that there was evidence of swelling in Joshua’s brain, similarly inconsistent with SIDS, but common with a suffocation type of death.

Perhaps most shockingly, Dr. Smith told the court he’d by chance discovered microscopic evidence of a healing skull fracture from a sample he’d taken from the right side of Joshua’s head. In his cross-examination of Dr. Smith, Sherret’s lawyer, Bruce Hillyer, managed to get the pathologist to concede that the fracture could, in fact, be a “variation” of something called a suture – nothing more than an active site of bone growth, which is present in all healthy infant skulls.

It was a reluctant concession, for while the doctor didn’t attribute the fracture to Joshua’s death, hedescribed skull fractures in infants as “worrisome.” It was his opinion that Joshua’s passing had been no accident, even though he couldn’t be certain “beyond a reasonable doubt.”

“If I was a betting man,” Dr. Smith told the court, “I would bet that his death was non-accidental . . . but that’s based on pure probability alone.”

Sure prob ability or not, Dr. Smith’s TE STIM ONY was enough to send Sherret to trial for murder. But in the weeks leading up to her trial, scheduled to begin on January 4, 1999, a year after the preliminary hearing, Crown attorney Sheila Walsh telephoned Bruce Hillyer to discuss a plea bargain.

Dr. Smith’s inability to take his opinions to the beyond a reasonable-doubt level had given her misgivings about proceeding with the murder charge. She asked Hillyer what his client might be willing to plead guilty to.

Sherret had been completely floored by Dr. Smith’s testimony. The notion of her smothering her own son made her shudder every time she thought about it. She had no idea how Joshua could have a skull fracture or neck injuries. Sherret had made it clear to Hillyer that she would never, under any circumstances, admit to causing Joshua’s death.

After discussions with Sherret, her father and Robinson, Hillyer told Walsh that Sherret would plead not guilty to the lesser charge of infanticide (often used in cases where mothers kill their children as a result of severe post-partum depression) but would not contest the various facts that implicated her in the crime.

In other words, Sherret would be found guilty while maintaining her innocence. Despite Sherret’s vehement denials, her lawyer thought the Crown had a decent chance of securing a murder conviction, primarily through Dr. Smith’s testimony.

The judge presiding over the trial, Mr. Justice R.G. Byers, struggled with how to sentence Sherret, mostly because her case had little in common with “usual infanticide cases,” he said, where you have a “mother who is remorseful and ashamed” for killing her baby.

Sherret is not remorseful, the judge reminded Hillyer. “She doesn’t even think she did it, nor does her family.”

In the months that it took Judge Byers to determine the appropriate sentence, given the circumstances of this somewhat perplexing case, Sherret had another crushing decision to make. Austin was almost five years old and was still with the same foster-care family that had taken him in 1996. Sherret was convinced that she was likely going to prison, and she was coming to terms with her losing him, and him losing her. “I felt I had no choice but to be separated from him,” she would later say. “As a mother, I learned that loving included letting go. I had to sacrifice my life so that he could have his.”

Two days before her sentencing hearing on June 2, 1999, Sherret signed papers that released Austin for adoption to his foster parents. She wouldn’t have the right to see him again until he was 18.

“During my last visit with him,” Sherret now recalls, “Austin sat there, and I told him that Mommy had to go away. And he said, ‘No.’ I said, ‘Why not?’ He said, ‘Because you lied.’ ‘What do you mean Mommy lied?’ I asked. ‘You said I’m coming home once you’re better.’ I had promised that things would get better, and they didn’t. I just sat there and I bawled. For a five-year-old child to remember something so specific that I’d told him more than three years earlier was one thing, but for him to come back and say I’d lied . . .”

Judge Byers wasn’t sympathetic as he read his decision in court. “Who speaks for Joshua?” he asked. “Is his life so unimportant that his mother, who killed him without explanation, without apparent remorse, should go free without punishment? What signal does that send to this accused? To this community? Well, I speak for him now. He was important. He was a human being. He was only four months old. And, madam, you killed him. In my book, that means you go to jail.”

The judge asked Sherret to rise. He sentenced her to 12 months in prison and to two years of probation. He ended by declaring that she was no longer able to be the parent of an infant child.

Sherret spent the next six months at the Vanier Centre for Women in rampton, Ont., just northwest of Toronto. Vanier was often referred to as a prison but it was really more of a correctional facility: There were cottages, a school, a gym, a field and a dining hall. She managed to make a few acquaintances and take some courses. Her imprisonment was progressing as well as it could.

That all changed about six months into her sentence when one of the female inmates called her a “baby killer.” “It took five guards to pull me off that girl,” Sherret recalls. “Then I was thrown in a segregation cell before being sent to a new cottage. A couple of days later, they transferred me to the Quinte Detention Centre in Napanee.”

At Quinte, more local jail than prison, she was in a cell with four bunks and a constant stream of new roommates. “The main thing I remember about Quinte,” says Sherret, “is that I had an almost identical conversation with so many of the women who stayed in that cell with me – all of the weekenders and so forth. They’d start with a question, like, ‘You’re the baby killer, right?’ I’d reluctantly say, ‘Yeah, why?’

‘Well, we don’t think you did it.’ So I’d ask why they thought that, and so many of them would say, ‘Serial killers, rapists, murderers – these people don’t keep pictures of their victims and family in their cell. You have pictures of both your sons on your bunk.’ ”

Sherret was incarcerated for eight months. But when she emerged, the repercussions of Joshua’s death continued to steamroll her life, as well as those close to her. Her relationship with Robinson, whom she had married in the summer of 1997 while waiting for Dr. Smith to testify at her preliminary hearing, had become increasingly strained. They would end up separating in 2002.

Two years after her separation from Robinson, though, things finally began to turn around. Sherret landed a job as a technical-support professional with a Belleville- based computer and internet company called Stream International. Not long after starting at Stream, Sherret began dating a fellow employee named Robert Scott. In February 2005, they learned that Sherret, now 29 and almost a decade removed from Joshua’s death, was pregnant again.

Suspecting that the Children’s Aid Society would come calling once she’d given birth, Sherret informed her local CAS office that she was expecting, and a caseworker was assigned to monitor her. When her daughter, Madison, was born the following September, the CAS ordered that Sherret not ever be left alone with Madison – not even for one second. Sherret and Scott jumped through hoops to make sure another family member or friend was with Sherret at all times so that their daughter wouldn’t be taken from them.

The local CAS seemed content with this arrangement until February 2006, when Madison was four months – the same age as Joshua when Sherret supposedly killed him. Sherret was then informed that at an upcoming hearing in family court, the CAS was going to take the position that she should be barred from her home indefinitely, leaving Scott to care for Madison on his own. The CAS believed that Sherret was entering a “danger period” with her daughter.

Sherret knew she WAS GOING to have to fight to keep from losing her daughter. She’d been worried about Madison being taken from her even before she’d been born. A few weeks prior to her due date, Sherret had called her former lawyer, Bruce Hillyer, and asked him if he’d be willing to write a letter to the CAS on her behalf. Hillyer agreed to support her but he also informed Sherret of another crucial development in her case: Since her conviction, serious questions had been raised regarding the competency of Dr. Charles Smith.

The allegations being levelled against Dr. Smith were so grave that the chief coroner for Ontario had ordered a review of “44 criminally suspicious or homicide cases” dating back to 1991 in which Dr. Smith had conducted autopsies or provided opinions. In his letter to the CAS on behalf of Sherret, Hillyer also pointed out that the Ontario College of Physicians and Surgeons had commissioned its own panel, which, he wrote, “concluded that they were ‘extremely disturbed by the deficiencies in [Dr. Smith’s] approach.’

“Some cases come back to haunt you,” Hillyer added. “This [Sherret’s] is one of them.”

Sherret researched Dr. Smith on the internet and discovered some stories shockingly familiar to her own. One of the saddest cases involving Dr. Smith was that of William Mullins-Johnson, of Sault Ste. Marie, Ont., who spent a dozen years in prison for the murder of his four-year-old niece, based largely on Dr. Smith’s testimony that she had been sexually assaulted and strangled while he’d been babysitting her. Mullins-Johnson was released from custody in September 2005 and acquitted in October 2007 after a number of other forensic pathologists found Dr. Smith’s opinions untenable.

Mullins-Johnson’s dramatic release from prison had been largely orchestrated by a group based in Toronto called the Association in Defence of the Wrongly Convicted (AIDWYC). The director of AIDWYC, James Lockyer, had not only represented Mullins- Johnson in his bid for freedom, Sherret discovered, he’d also been involved in two of the biggest Canadian wrongful conviction cases in recent history – those of David Milgaard and Guy Paul Morin. Sherret began to wonder if AIDWYC might be able to help her.

“It actually took me five months to call AIDWYC,” says Sherret. “I’d call their number and a woman would answer, and I’d hang up. I was scared. I didn’t want anyone not believing me again.”

Once Sherret had mustered the courage to speak to someone at AIDWYC, she soon found herself on the wayto Toronto for an interview with James Lockyer. Over the course of his career, Lockyer had listened to many sad stories of those done wrong by the justice system, but when it came to children, Lockyer was particularly sensitive, being the parent of a young boy himself. Not long after his meeting with Sherret, Lockyer became determined to prevent Madison from being taken away from AIDWYC’s newest client. Lockyer convinced Ontario’s chief coroner, Dr. Barry McLellan, to fast-track his office’s internal review of Sherret’s case so the results would be available for the CAS to consider.

A month later, on the evening of March 28, Lockyer returned to Toronto from an AIDWYC-related trip and discovered that the report regarding the death of Joshua Sherret-Robinson had arrived while he’d been away. When Lockyer saw that it had been written by Ontario’s top forensic pathologist, Dr. Michael Pollanen, he began to read it with great interest.

Each finding of Dr. Smith was systematically dismantled in Dr. Pollanen’s report. Joshua’s fractured left ankle was healing and was an isolated injury that had likely happened accidentally. Incredibly, the neck hemorrhages Dr. Smith had claimed were the result of asphyxiation had actually been caused by Dr. Smith himself when he dissected Joshua’s neck during his autopsy, and Dr. Smith’s own autopsy report made no mention of the brain swelling that he’d offered up during his preliminary hearing testimony as evidence that Joshua had been suffocated. And the ominous skull fracture? It wasn’t a fracture at all. It was, as Bruce Hillyer had suggested eight years earlier, a completely normal growth site in the bone known as a cranial suture.

Dr. Pollanen concluded that a definitive cause of death could not be determined. Despite this uncertainty, however, he believed that potential explanations for Joshua’s death were to be found in his sleeping environment. Joshua had been placed face down in a makeshift crib “constructed from a playpen, using a sleeping bag and a quilt as a sleeping surface.” The fact that the baby had a comforter bunched up around his head when Sherret found him on the morning of his death likely also played a role.“Forensic pathologists,” he wrote, “have become increasingly aware that unsafe sleeping environments are often associated with sudden death in infancy.”

Shortly after 11 p.m., Lockyer called Sherret from his car as he drove home to tell her about the report. Once he’d finished, there was silence on the other end. Then, after a long pause, he thought he heard some whimpering. He kept driving and asking, “Sherry, are you all right?”

“There was a two- or three-minute silence,” says Lockyer. “Then I started crying, too. I had to pull over. I couldn’t see through my tears.”

On April 19, 2007, after 18 months of review, the team of international pathologists assembled to examine Dr. Smith’s practices concluded that it was troubled by 20 of the 45 cases it looked at. Sherret’s was one of 12 prosecutions the team felt might have resulted in a wrongful conviction as a result of Dr. Smith’s testimony.

After reviewing Dr. Pollanen’s report, the CAS quickly terminated its supervision order for Sherret’s daughter, Madison, and officially stepped out of their lives. Sherret’s next step was to officially clear her name, but there was just one problem: The deadline for her to file her appeal – no more than 30 days after her conviction – had passed eight years ago. Citing the highly unusual circumstances of the case, Lockyer applied for an extension to file an appeal on Sherret’s behalf before the Ontario Court of Appeal.

“I never tried to appeal my conviction for infanticide,” wrote Sherret in her application to the court, filed in May. “My counsel never discussed an appeal with me. I never believed I had any basis for an appeal. The first time I realized I might have a basis to appeal was after Dr. Pollanen’s first report in March 2006.”

Sherret appeared before the Court of Appeal on July 26, 2007, and, with the Crown’s consent, was granted a one-week extension to file an appeal, which likely won’t be heard until sometime in 2008. “Soon enough,” said Sherret, a few weeks after the decision, “people will know that 11 years ago, I said Josh was sick. The Court of Appeal will now hear that he was, in fact, sick. All I can do now is sit back and let James Lockyer do his job and hope for the best.”

After a decade of suffering, Sherret is now poised for public redemption. But what’s most important to Sherret is that Austin and Madison grow up never doubting her love for them – or Joshua. One day, when Austin is old enough to see her again, she’ll be able to prove that she’d been telling the truth all along, trying to fix her problems so she could get him back. Sherret had promised long ago to set things right, and even if it takes most of Austin’s youth for her to do so, he’ll live the rest of his life knowing his mother has kept her word.