Two women who say they felt pressured to plead guilty to killing their infants are victims of miscarriages of justice, Crown prosecutors have conceded.
The Crown will ask the Ontario Court of Appeal on Wednesday to quash the convictions, acknowledging they were based on flawed evidence from the infamously inept pathologist Dr. Charles Smith.
In its factum, the Crown says it will seek new trials for the pair.
The tragic cases involved young women who have always maintained they were unaware they were even pregnant when they gave birth to babies in the bathrooms of their homes.
Both women were subsequently diagnosed by psychiatrists as suffering from acute distress disorder during their traumatic deliveries, of which they have only hazy memories. There are questions as to whether the babies were even born alive and causes of death remain undetermined.
The pair cannot be named because of publication bans. One woman, identified only as the mother of baby M, was 21 when she gave birth in her Toronto-area home in 1992. The other, identified as the mother of baby F, is from outside Toronto and was 18 when she gave birth in 1996.
Baby M’s mother says she had no idea she was pregnant because she had lost weight prior to the delivery and her periods had always been irregular. The college student thought she was having regular menstrual cramps when labour pains started.
“She was shocked to see a head coming out,” according to court documents. “She described feeling like her insides were coming out. She was in a state of shock.”
Her parents arrived home to find the body of a baby boy in the toilet. Their daughter was lying on the bathroom floor in a pool of blood.
Smith conducted an autopsy and determined the baby died from asphyxia and was the victim of infanticide, findings which were discredited by a panel of expert pathologists who testified at a public inquiry more than two years ago.
The baby’s mother was charged with second-degree murder but ended up pleading guilty to the lesser office of manslaughter, something she says she felt forced to do.
“For nineteen months, she had been told that the Crown was seeking a sentence of up to six years imprisonment. She knew that the Crown’s pathologist, Dr. Smith, had given the opinion that she had intentionally killed her baby. She did not think her denials would be believed,” her factum states.
The evening before baby F was born, the infant’s mother, then a high-school student, cancelled plans to play hockey with friends because she had cramps. She thought she was having a bowel movement when she gave birth to a baby girl. She put the baby in a plastic bag in her bedroom closet.
Smith reviewed the case and again determined the baby died from asphyxia, the result of infanticide. Again, his findings were discredited at the inquiry.
“Dr. Smith’s reputation is now in tatters. His opinion no longer commands respect . . . In 2008, the Goudge Report drew damning conclusions about his work, his ethics and his honesty,” her factum states.
But at the time, the woman’s lawyer was reluctant to challenge Smith because he was considered “the guru in determining the causes of child deaths (and) was the premier pediatric pathologist for Ontario and likely Canada,” her factums states.
She pleaded guilty to infanticide and subsequently received a pardon.
“I felt like I really did not have a choice. I could not remember what really happened and was faced with police and pathologists who seemed sure that my baby’s death was infanticide . . . .
“But I had no memory of what was being alleged and in my head never believed for a moment that I had intentionally done anything to cause my baby’s death,” she states in her affidavit.
In requesting new trials for the pair, the Crown argues in its factum that cases could be made that the mother of baby F aborted the fetus herself and that the mother of baby M drowned her baby in the toilet.
Status of Charles Smith cases
The court has already quashed convictions against:
Other cases still winding through the appeal process: