Case Summary
Dinesh Kumar moved to Canada with his wife, Veena, and first-born son, Saurob, in 1991. His second son, Gaurov, was born in February 1992.1 On March 18, 1992, Dinesh picked up Gaurov from his crib and found that he had stopped breathing. He attempted CPR and called his brother-in-law for help, since he spoke limited English and was unfamiliar with the 911 system.2 At his brother-in-law’s direction, Dinesh and his wife then called 911, and emergency responders arrived to take Gaurov to the hospital. Gaurov never regained consciousness and was removed from life support on March 20, 1992.3
Dinesh’s surviving son, Saurob, was removed immediately after his brother’s death. Suspecting that Gaurov’s death was the result of child abuse, the Children’s Aid Society placed Saurob with Veena’s brother. Neither of Saurob’s parents was allowed to be alone with him.4
On March 21, 1992, then renowned pediatric pathologist Charles Smith performed an autopsy of Gaurov’s body. Smith reported that Gaurov had the “triad” of internal head injuries that were thought to be diagnostic of Shaken Baby Syndrome, meaning that Gaurov had been shaken to death. Smith reached this conclusion despite also finding evidence of a pre-existing head injury that Gaurov likely sustained during his birth. Smith’s SickKids Hospital colleague Dr. Huyer, who had no training in pathology but was a member of the Suspected Child Abuse and Neglect (SCAN) unit, agreed with his assessment. As a result, Dinesh was arrested and charged with second degree murder on June 26, 1992.5
Dinesh had always maintained his innocence, both when questioned by police and when speaking privately with defence counsel. Wanting to understand what had caused Gaurov’s death, Dinesh had cooperated with the police investigation: he shared his recollection of the night of March 17, denying doing anything to cause harm to Gaurov. Dinesh’s arrest left him shocked and afraid.6
Dinesh’s lawyer explained to him that he was facing a life sentence as well as deportation: if he were convicted, Saurob would be left without his father. Veena, a stay-at-home mom who was recovering from brain surgery, would have to look after their son on her own.7 Dinesh’s counsel told him that there was no effective way to challenge Smith’s evidence, since his stellar reputation made him like “a God” in the courtroom.8
The Crown offered Dinesh a plea deal that would save him from having to challenge Smith’s evidence, and thus from a likely murder conviction: if he pled guilty to criminal negligence causing death, he would avoid the spectre of life imprisonment and instead receive only a 90-day sentence, to be served on weekends, followed by two years’ probation. If Dinesh took the deal, he could also avoid immigration consequences and continue to live in Canada with his family. Saurob could be returned to Dinesh’s custody if he accepted the offer. After much discussion of this difficult choice with his family, Dinesh pled guilty to criminal negligence causing death on December 3, 1992.9
In the years following Dinesh’s conviction, increasingly grave concerns came to light regarding Charles Smith’s forensic pathology work. In June 2005, the Chief Coroner of Ontario 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.10 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.11 Of particular importance for Dinesh, the report identified Gaurov’s case as one of these 20 in which the experts had serious disagreements with Smith’s conclusions. Twelve of these cases, including Dinesh’s, had led to criminal convictions.12
In the wake of these conclusions, Justice Stephen Goudge was appointed to lead a public inquiry into pediatric forensic pathology in Ontario.13 In 2007, the Goudge Inquiry Report revealed a staggering list of serious problems with Smith’s methodology and impartiality.14 Justice Goudge noted that Smith’s background in forensic pathology was “woefully inadequate,” since he had only been trained as a pediatric pathologist.15 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.16 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.”17 Justice Goudge found that Smith often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.”18
In 2011, Smith was stripped of his medical licence at a disciplinary hearing for disgraceful conduct.19
In light of Justice Goudge’s findings, the Crown agreed that Dinesh’s case should be reopened, and ultimately that he should be acquitted.20 Five forensic pathology experts provided fresh evidence to the Ontario Court of Appeal, all of whom agreed that Gaurov’s cause of death was undetermined, rather than due to being shaken. Some of the expert evidence suggested that Gaurov died due to complications from his birth injury.21
The experts explained that the diagnosis of Shaken Baby Syndrome (SBS) had become increasingly controversial in the years since Dinesh’s conviction. Forensic pathologists no longer viewed the “triad” that Smith observed as, in itself, diagnostic of abuse.22 Some rejected the existence of SBS outright.23 Regardless, in Gaurov’s case, there was no evidence besides the purported “triad” to suggest that Dinesh had harmed him.24
On February 10, 2011, the Court set aside Dinesh’s guilty plea and entered an acquittal.25 Regarding the guilty plea, the Court observed that:
The justice system . . . held out a powerful inducement: a reduced charge, a much-reduced sentence (90 days instead of a minimum of ten years), all but the elimination of the possibility of deportation, and access to his surviving child. Given the persuasive value of the fresh expert evidence that shows that the conviction was unreasonable, this is a proper case to set aside the guilty plea to avoid a miscarriage of justice.26
The Court observed that, in contrast to other cases in which Smith gave erroneous expert evidence, his 1992 opinion as to Gaurov’s cause of death “would have been supported by many other experts and, in fact, was apparently supported by a pathologist consulted by the defence.”27 By the time of Dinesh’s acquittal, the field of forensic pathology had advanced such that the experts could recognize - and rectify - the errors that led to his wrongful conviction.28