Case Summary
Richard Brant was a proud Mohawk father on November 17, 1992. He was out for a walk with his infant son, Dustin, when he lifted the hood of Dustin’s baby carriage to find him motionless with red foam around his nose.1 While doctors placed Dustin on life support in the hospital, police began speaking to Richard about what happened. Despite doctors’ best efforts, Dustin died the following day.2
Dr. Sukrita Nag, an expert neuropathologist, performed Dustin’s autopsy. Dr. Nag concluded that Dustin had died due to complications from pneumonia - Dustin had been suffering from an upper respiratory infection shortly before his death.3
Despite Dr. Nag’s conclusion, police continued to investigate their theory that Richard had killed Dustin. They asked then-revered pediatric forensic pathologist, Dr. Charles Smith, for a second opinion.4 Smith concluded that Dustin exhibited the classic symptoms of Shaken Baby Syndrome, and that Brant’s shaking his son had led to Dustin’s death.5 Smith reached these conclusions despite the fact he had not examined Dustin’s brain, as there had been a preservation error on the part of the morgue staff.6 On April 22, 1993, seven days after Dr. Smith’s report came out, Richard was arrested and charged with manslaughter.
Richard knew that he was innocent, but he also knew that he would face a sentence of about 4 to 8 years in prison if he were found guilty of manslaughter. Smith would be the prosecution’s star witness, and Richard’s lawyer told him that Smith was viewed as “‘the king’ of his field” and that it would be practically impossible to challenge Smith’s conclusion.7
After Smith testified at a preliminary hearing for Richard’s case, Richard realized just “how much trouble” he was in: Richard’s new partner was expecting a baby, and having just lost his first child, he could not bear the thought of not being part of this new baby’s life.8
After the preliminary hearing, the Crown offered Richard a deal: if he pled guilty to aggravated assault, the Crown would seek a custodial sentence of six to nine months. Richard’s lawyer explained to him that in order to take the deal, he had to “admit enough facts to make out a criminal offence.”
Richard made the difficult choice to tell the court that whatever happened to Dustin was the result of an accident that occurred during an argument between him and Dustin’s mother. On April 21, 1995, feeling like he had no other option, Richard pled guilty to aggravated assault, and was sentenced to six months in prison.9 Even after his release from prison, Richard was ostracized by members of his community who believed that he had killed his newborn baby. He moved several times in hopes of starting a new life.10
In a sworn document subsequently submitted to the Ontario Court of Appeal, Richard Brant explained his decision to plead guilty as follows:
I was not working at the time. My life has not been without its troubles and I have acquired a criminal record of some substance….For many months, Mr. Graydon [Brant’s defence lawyer at the time] told me it was in my best interests to plead guilty. He said he would tell the Court that Dustin’s injuries had been caused during a struggle with Mary on the Friday evening. I agreed, but insisted that he tell the judge that whatever had happened to Dustin was unintended. He agreed to this, but he also explained that, in order to plead guilty, I had to admit enough facts to make out a criminal offence. I agreed to acknowledge that whatever had caused Dustin’s injuries occurred during my argument with Mary. On April 21, 1995, I pled guilty to aggravated assault before Justice Byers in Belleville. Based on Dr. Smith’s evidence and Mr. Graydon’s advice, I felt I had no other option. On May 19, 1995, I was sentenced to six months in prison. After my sentence was completed I did my best to put this behind me, though the day of Dustin’s death will stay with me forever. …I still do not know what caused Dustin’s death, but I always suspected it could have been pneumonia, like Dr. Nag originally said. I believe it would be in the interests of justice to allow my appeal of my conviction. I did not cause Dustin’s death or assault him in any way, and pled guilty because I felt I had no other realistic option. I entered my plea because I feared the consequences of flawed pathology. If I knew then what I know now, I would not have done so. I ask the Court to take the burden of having harmed him from my shoulders."11
In 2005, complaints about Dr. Charles Smith’s work led to a review by the Ontario Coroner’s Office of 45 cases involving suspicious deaths of children that Smith had worked on, including Dustin’s.12 In 2007, a public inquiry into pediatric forensic pathology in Ontario was led by Court of Appeal judge Stephen Goudge.13 The Goudge Inquiry Report revealed a staggering list of severe issues with Smith’s methodology and impartiality. Of note, the inquiry report concluded that Smith’s training in forensic pathology was “woefully inadequate” and that he was only trained as a pediatric pathologist.14 Despite his flawed methodology, Smith presented his opinion in a “dogmatic and certain manner.”15 16 Of particular relevance to Dustin’s case, the report noted that Smith stated that Dustin’s initial autopsy was “botched” and should have been “filed in the garbage can,” despite the incomplete nature of Smith’s own examination.17 Further, the report identified that at the preliminary hearing, Dr. Sukrita Nag was due to testify to her autopsy findings but was not prepared to do so and ultimately did not testify because Smith refused to return microscopic slides and other autopsy material to her.18
Notably, the experts who reviewed Dustin’s case as part of the Ontario Coroner’s Review agreed that there was no evidence to support Smith’s finding that Richard had hurt Dustin.19 The experts noted that because Dustin’s brain had not been properly preserved, there should have been no finding of a cause of death. They further stated that pneumonia may have indeed played a role in Dustin’s passing.20
The Ontario Court of Appeal granted Richard leave to reopen his case in January of 2009.21 Since it had become clear to everyone that Smith’s incorrect report had led to the conviction of an innocent man, Richard’s lawyer and Crown prosecutors jointly requested that the court acquit him. On May 4, 2011 - 16 years after Richard’s wrongful conviction - the Court of Appeal complied with this request, setting aside the false guilty plea and entering an acquittal. It noted problems with Smith’s use of “the so-called triad of subdural haemorrhage, cerebral edema and retinal haemorrhage”22 as indicative of baby shaking. It also noted that Smith “was unfairly critical of the work of the pathologist who performed the autopsy and considered that pneumonia may have played a material role in the death.”23 It also stated “the fresh expert evidence now available offers two non culpable explanations for the findings of the autopsy, namely idiopathic cardiorespiratory arrest or a blood clot in the cerebral sinus.”24 The Ontario Court of Appeal concluded: “The fresh evidence establishes that a miscarriage of justice has occurred. It is in the interest of justice that the fresh evidence be admitted, the guilty plea set aside, the appeal from conviction allowed and an acquittal entered.”25 Richard Brant, then the father of two girls, told reporters that the Court of Appeal’s decision “lifts a great weight off my shoulders. This just destroyed me.”26 He added: “Now I can hold my head, no doubt. The truth always comes out. I waited and it finally came”. As for Charles Smith, Brant stated: “I think he needs to go to jail for a little while to see what he put a lot of people through… He ruined a lot of people's lives. And I think he needs to go and see what it's like inside jail 'cause he's the one that put a lot of people there."27