Application to re-open appeal from conviction. Accused was caring for his three-month-old grandson when child stopped breathing. CAT scan and radiological examination showed that child’s brain was grossly swollen and there was significant skull fracture. Accused’s appeal from conviction for manslaughter after first trial was allowed and new trial ordered. He was tried again and convicted. Accused sought to re-open appeal from that second conviction. Accused’s case to re-open his appeal was based on better understanding of Shaken Baby Syndrome as result of Goudge Inquiry into Pediatric Forensic Pathology in Ontario. Application dismissed. This case did not turn on Shaken Baby Syndrome, nor did it turn on kind of evidence from Dr. Charles Smith that was so heavily criticized in Goudge Inquiry. Doctor who performed autopsy testified at both of accused’s trials said that child’s injuries were result of blunt force impact, though there were also some findings that may have been associated with shaking. Issue at accused’s second trial was whether injuries were caused by accident in course of resuscitative efforts or intentionally inflicted. Defence position of accident was clearly placed before jury and in manner favorable to defence. This case did not turn on Shaken Baby Syndrome but on cumulative circumstantial evidence including unexplained skull fracture. This was accused’s opportunity to provide that explanation and he had not.
R. v. Simmons
(Feb. 13, 2012, Ont. C.A., Rosenberg, Hoy JJ.A. and Swinton J. (ad hoc), File No. M40773 (C32002)) 99 W.C.B. (2d) 527 (8 pp.).