Case Summary
Brenda Waudby was wrongfully convicted of child abuse in 1999 as a result of the misleading forensic analyses of Charles Smith, a once-prominent pathologist.1 In 1997, Waudby’s second daughter, Jenna Mellor, was killed at the hands of her 14-year-old babysitter, but it was Waudby who was charged with second degree murder.2 In fear of losing custody of her two surviving children, Waudby pled guilty to a charge of child abuse. Shortly after, the Crown abandoned the murder charge.3 As a result of Charles Smith’s negligent analyses of evidence and misleading testimony, Waudby was forced to live under the stigma of being a child abuser and murderer for years to come, until her conviction was quashed in June of 2012.4
Before Jenna’s death in 1997, Waudby had already been in a vulnerable position with her children: she was a recovering cocaine addict struggling to make ends meet, and she had only just regained custody of her children.5 On the night of January 21, 1997, Waudby left 21-month-old Jenna and her big sister, Justine, in the care of “J.D.”, who lived in the same apartment building. (J.D. cannot be named as he was a minor at the time.) Frustrated at having been tasked with caring for Jenna, J.D. took out his anger on the little girl. Years later, J.D. would admit that he had beaten her to death.6
Shortly after midnight on January 22, 1997, J.D. realizing that Jenna was not breathing and alerted his mother, who called 911. At 1:50 a.m., Jenna was pronounced dead. J.D. told police that he had nothing to do with her death.7
Charles Smith, then a celebrated pediatric pathologist, performed Jenna’s autopsy at the world-renowned SickKids Hospital in downtown Toronto. Smith’s expert opinion evidence supported J.D.’s account of events. At first, Smith had concluded that Jenna’s injuries had occurred shortly before her death; however, he changed his mind, concluding that her injuries were sustained the previous day, when she had been in Waudby’s care. As a result, Waudby was arrested and charged with second degree murder on September 18, 1997.8
By this time, Peterborough police had been investigating Waudby for several months. She had repeatedly denied causing harm to Jenna. In hopes of eliciting a confession, an undercover officer began attending Waudby’s Narcotics Anonymous meetings, pretending to be a local woman named Ramona who was struggling with heroin addiction. “Ramona” gradually got to know Waudby, who came to trust the officer. Eventually, Waudby believed that “Ramona” was her best friend.9 At a visit to Jenna’s gravesite, Waudby confided in “Ramona” that police suspected she had killed Jenna. The officer said that perhaps Waudby could not recall hurting her daughter, due to the traumatic nature of the event. Waudby took her friend’s words to heart and started to doubt her own recollection.10
Waudby’s faith in herself had been badly eroded by the time of her arrest. Det. Cst. Lemay, who interrogated Waudby, told her the forensic evidence clearly established that she had killed Jenna. He entreated her to take responsibility for her “mistake”.11 Waudby no longer trusted herself and could not understand what had happened since Smith—the leading name in his field—had established J.D.’s innocence.12 Terrified of being jailed as a purported child killer, and that she would forever lose custody of her other children, Waudby finally told police what they wanted to hear. She “confessed” to hitting Jenna, hoping to be treated better if she took the blame.13
As Waudby’s trial date approached, Charles Smith’s opinion evidence began to fall apart. Waudby’s lawyer contacted a SickKids staff surgeon, Dr. Sigmund Ein, in November 1998. Dr. Ein disagreed with Smith, concluding that Jenna sustained her injuries on the night that she had died. Three other experts retained by defence counsel went on to agree that Smith’s opinion was wrong: J.D., not Waudby, had fatally beaten Jenna. The Crown then obtained its own opinion from Ontario’s Deputy Chief Coroner (Inquests), who likewise agreed that Jenna’s injuries occurred while she was in J.D.’s care.14
Since the Crown no longer had a case, Waudby’s murder charge was dropped on June 15, 1999. But by this time she had pled guilty to the lesser charge of child abuse, under the provincial Child and Family Services Act.15 In theory, this plea pertained not to Jenna’s fatal injuries, but to separate injuries to her ribs that Smith claimed she had sustained one to three weeks before her death. In reality, no such event occurred: all of Jenna’s injuries were inflicted by J.D. This error would not be discovered for another 13 years.16
Meanwhile, Peterborough police reopened their investigation into Jenna’s murder. In November 2005, J.D. confessed. He pled guilty to manslaughter in December 2006, and was sentenced as a young offender to 22 months in prison and 11 months’ community supervision.17
Though the court had now confirmed that Waudby did not kill her daughter, her guilty plea still stood, and she continued to be stigmatized as a child abuser.18 However, increasingly grave concerns had started coming to light regarding Charles Smith’s forensic pathology work. In June 2005, the Chief Coroner of Ontario had announced that a formal review would be conducted of all forensic pathology cases from 1991 to 2002 where Smith performed the autopsy or acted as a consultant.19 The results of the Chief Coroner’s Review were released in April 2007. In 20 of the 45 cases surveyed, the reviewing experts took issue with Smith’s interpretation of the evidence in his written report, testimony, or both.20
In the wake of these conclusions, Justice Stephen Goudge was appointed to lead a public inquiry into pediatric forensic pathology in Ontario.21 In 2007, the Goudge Inquiry Report revealed a staggering list of serious problems with Smith’s methodology and impartiality.22 Justice Goudge noted that Smith’s background in forensic pathology was “woefully inadequate,” since he had only been trained as a pediatric pathologist.23 Moreover, Smith “did not always ensure that he had all the relevant medical information before he conducted an autopsy,” and he was “sloppy and inconsistent in documenting the information” that he did have.24 In addition, Smith failed in his role as an expert witness by presenting his opinion in a “dogmatic and certain manner when the evidence was far from certain.”25 Justice Goudge found that Smith often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.”26
In Jenna’s case, Justice Goudge identified an “inexcusable” array of disturbing deficiencies in Smith’s methods and integrity.27 He found that Smith had made “serious errors” in wrongly estimating the timeframe when Jenna sustained her injuries, and therefore wrongly concluding that Waudby had killed her.28 He also gave this opinion in such a confusing, misleading, and disorganized way that his claims could not properly be evaluated.29 Justice Goudge concluded that Smith’s opinion was tainted by prejudice: he was critical of Waudby for coming home later than she had expected on the night of Jenna’s death, going so far as to claim that “the real issue in the case was that [she] . . . had not returned home until eight or nine hours later.”30 Justice Goudge concluded that Smith believed so strongly in Waudby’s guilt “in part because of his view that Jenna’s mother was irresponsible.”31
Moreover, Smith was both negligent and deceitful in his handling of evidence from Jenna’s autopsy. Police learned in 2001 that Smith had retrieved a pubic hair from Jenna’s body; ER staff had also alerted him to other possible signs of sexual assault. However, Smith did nothing to analyze the hair, did not alert police to its presence, and otherwise took no steps to determine whether Jenna had been sexually assaulted.32 Smith then lied about this omission to police, senior officials tasked with regulating his professional conduct, and finally Justice Goudge himself.33
Smith’s victims, including Waudby, were each awarded compensation of up to $250,000. Waudby also sued both Smith and Peterborough police. In 2011, the parties reached a settlement for an undisclosed amount.34 That year, Smith was stripped of his medical licence at a disciplinary hearing for disgraceful conduct.35
Following Smith’s disgrace, the Crown agreed to Waudby’s request for an extension of time to appeal her child abuse conviction.36 Justice Fuerst of the Ontario Superior Court reviewed the Goudge Inquiry’s findings, as well as further fresh evidence from forensic pathologist Dr. Christopher Mark Milroy, confirming that J.D. had inflicted all of Jenna’s injuries. On June 27, 2012, Justice Fuerst overturned Waudby’s conviction, finding that: “There was no factual basis for the charge of child abuse or to Ms. Waudby's guilty plea to it. Her guilty plea along with [her] ensuing conviction of child abuse was a miscarriage of justice.”37 Justice Fuerst stated that Waudby “should have been treated over these many years as the person she is—a victim, not a perpetrator; a loving mother who suffered the excruciating loss of her daughter's life at the hands of someone else."38
Fifteen years after Jenna’s death, Waudby’s name had at last been cleared.39 In 2011, before her exoneration, she had enrolled in a dual-diploma paralegal and law clerk program. Planning to draw on her own experiences to work in criminal law, she said: “I want to fight for the ones that can’t fight for themselves, because they’ve been beaten down or broke down so far they get tired of trying.” Waudby graduated in 2013.40