C. F.

In November 1996, 18-year-old Jane Doe (whose identity is protected by a publication ban) gave birth to a baby girl.¹ The night before, the high-school student cancelled plans to play hockey with her friends because she had cramps.² She had no idea she was pregnant, and was terrified and confused when she found herself giving birth alone in her family’s bathroom.³ Her infant, Baby F, was either stillborn or died within minutes of birth.⁴ Her father took her to the hospital after she suffered significant blood loss.⁵ Two days later, the police discovered Baby F’s body in Doe’s closet, wrapped in a towel and plastic bags.⁶ 

Dr. Walsh performed the autopsy on Baby F and certified that the cause of death was anoxia in a “normal, live-born female.”⁷ However, he sought a second opinion from his colleague, now-disgraced pediatric forensic pathologist Charles Smith.⁸ Without even examining the body, Smith concluded that the cause of death was asphyxia, and stated that “in the absence of an alternative explanation, the death of this baby girl is attributed to infanticide.”⁹

In March 1998, Doe was charged with infanticide.¹⁰ Doe retained a criminal defence lawyer who was familiar with Smith’s work.¹¹ Given Smith’s reputation as “the premier paediatric pathologist in Ontario, and likely Canada,” the lawyer knew that presenting conflicting expert evidence would not undermine Smith’s opinion.¹² At the time, Smith was considered an “invincible icon,” and his opinions were treated as infallible.¹³ As a result, the lawyer felt that the cost of retaining a forensic pathologist to testify against Smith would not be justified for Doe.¹⁴

Concerned that her story would not be accepted over Smith’s opinion, and wanting to shield her family from further distress, Doe agreed to plead guilty in July 1998.¹⁵ Even in her plea, she maintained that she had been unaware of the pregnancy, had no recollection of giving birth, and denied having wilfully caused Baby F’s death.¹⁶ She was convicted by Justice Harris of the Ontario Court of Justice, and received a two-month conditional sentence, which she served at home, followed by three years of probation and 150 hours of mandatory community service.¹⁷ Years later, in 2006, she was pardoned under the Criminal Records Act for this conviction.¹⁸ 

Over time, public concern about Smith’s professional competence grew.¹⁹ In 2005, the Chief Coroner of Ontario ordered a review of Smith’s cases.²⁰ The Chief Coroner found that there were serious problems with Smith’s opinion in 20 of the 45 cases reviewed, including in Baby F’s case.²¹ These findings prompted a public inquiry, led by Justice Stephen Goudge of the Ontario Court of Appeal. The Inquiry into Paediatric Forensic Pathology, or Goudge Inquiry, shed light on Smith’s flawed methodology, erroneous conclusions, and irresponsible expert testimony.²² Smith eventually lost his license to practice medicine in 2011.²³

In the wake of the Goudge Inquiry, Doe appealed her conviction.²⁴ It was clear that Smith’s evidence did not substantiate his claims, and that he went beyond his mandate in concluding that Baby F’s death was the result of infanticide.²⁵ During the Coroner’s Review, all five reviewing pathologists found that there was never any reliable evidence to support Smith’s conclusion that Baby F died of asphyxia.²⁶ In fact, the pathologists concluded that the autopsy “did not provide reasonable and probable grounds” to charge Doe.²⁷ In addition, it was deemed inappropriate that Smith addressed the issue of blame by suggesting that Baby F’s death was the result of infanticide.²⁸ The Crown acknowledged that there had been a miscarriage of justice and the Ontario Court of Appeal set aside Doe’s conviction in October 2010.²⁹ In 2011, the Crown formally withdrew all charges and Doe was exonerated by Justice Harris, who had originally accepted her guilty plea and convicted her in 1998.³⁰

Doe’s identity continues to be protected by a publication ban that is intended to provide comfort and protect her and her family.³¹ The Court of Appeal acknowledged “the suffering that [Doe] and her family have endured as a result of the flawed pathology opinion.”³² The case took its toll over the 14 years leading up to her acquittal.³³ Doe was diagnosed with acute stress disorder stemming from her traumatic delivery.³⁴ She was not present at court when her conviction was quashed, because she “didn’t want to have to relive it.”³⁵ Her father, however, attended the proceeding and left the Ontario Court of Appeal crying after it was over.³⁶ Though the decision was a relief, he stated through his lawyer that he “wouldn’t want any family to go through what his went through.”³⁷