WARNING

An order restricting publication in this proceeding was made under s. 517
    of the
Criminal Code
and continues to
    be in effect.  This section of the
Criminal Code
provides:

517.

(1)
    If the prosecutor or the accused intends to show cause under section 515, he or
    she shall so state to the justice and the justice may, and shall on application
    by the accused, before or at any time during the course of the proceedings
    under that section, make an order directing that the evidence taken, the information
    given or the representations made and the reasons, if any, given or to be given
    by the justice shall not be published in any document, or broadcast or
    transmitted in any way before such time as

(
a
) if a preliminary inquiry is held, the
    accused in respect of whom the proceedings are held is
discharged
;
    or

(
b
) if the accused in respect of whom the proceedings are held is tried or
    ordered to stand trial, the trial is ended.

Failure to comply

(2) Every one who fails without lawful excuse, the
    proof of which lies on him, to comply with an order made under subsection (1)
    is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c.
    27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

CITATION:
R. v. Gale, 2011
          ONCA 144

DATE: 20110225

DOCKET: M39594

COURT OF APPEAL FOR ONTARIO

Doherty J.A.

BETWEEN

Her Majesty the Queen

Applicant

and

George Christopher Gale

Respondent

Alexander Alvaro, for the applicant

Donald Crawford, Q.C., for the respondent

Heard:  February 11,
        2011

An application for review under s.
          680 of the
Criminal Code
of the
          order of the Honourable Justice Rogin of the Superior Court of Justice dated December
          3, 2010 releasing the respondent on bail pending his trial on a charge of
          second degree murder.

Doherty J.A.:

I

[1]

The Crown applies under s. 680 of the
Criminal Code
for a direction that a
    panel of this court review the order of Rogin J. (the bail judge) admitting the
    respondent to bail on a charge of second degree murder.  The respondent is charged with murdering his
    common law wife, Jocelyn Bishop.  The
    Crown submits that the bail judge erred in releasing the respondent and that on
    a proper application of the tertiary ground in s. 515(10)(c) and having regard
    to the onus placed on the respondent by s. 522, a detention order should have
    been made.

[2]

I will not direct a review of the bail
    order.

II

[Paragraphs 3 -10 refer to the evidence adduced at the bail
    hearing and have been edited pending completion of the proceedings, pursuant to
    the non-publication order of Justice
Rogin
.  The full text of the decision is available at
    the Registry of the court.]

III

[11]

The respondent was not initially charged with
    murder and the Crown proceeded with a bail hearing on the firearms charges, the
    marijuana charges, and a charge of offering an indignity to a human body.  A justice of the peace ordered the respondent
    detained on those charges

[12]

After the respondent was charged with murder, a
    bail hearing on that charge proceeded under s. 522 of the
Criminal Code
in the Superior Court.  The respondent brought a simultaneous bail
    review application from the detention order made by the justice of the
    peace.  The Crown and the defence agreed
    that if the respondent was ordered released on the murder charge, he should also
    be ordered released on the other charges.

[13]

At the bail hearing, the Crown relied on the
    secondary ground, the protection or safety of the public (s. 515(10
)(
b)), and the tertiary ground, maintaining confidence in
    the administration of justice (s. 515(10)(c)), in urging the bail judge to
    order the detention of the respondent.  On this application for review, the Crown relies only on the tertiary
    ground.  I need not refer to the bail
    judges reasons on the secondary ground.

[14]

In considering the tertiary ground, the bail
    judge began by correctly identifying the approach to be taken when considering
    detention on that ground.  He enumerated
    the specific factors set out in s. 515(10
)(
c).  The trial judge followed his enumeration of those
    factors with a consideration of the strength of the Crowns case, the factor
    identified in s. 515(10(c
)(
i).  The bail judge described the Crowns case as
    far from an overwhelming case.  The
    trial judge then acknowledged the serious nature of the charge and the
    inevitability of a lengthy jail sentence should the respondent be convicted of
    even the included offence of manslaughter.  These are the factors identified in ss. 515(10
)(
c)(ii)
    and (iv).

[15]

The bail judge concluded his analysis on the
    tertiary grounds with these words:

I am satisfied that the accused has demonstrated
    that a reasonable person, informed of the tenets of our criminal justice
    system, would not lose confidence in the administration of justice if he were
    released on appropriate terms.

IV

[16]

The
    relevant part of s. 680 reads:

A decision by a judge under s. 522 ... may, on the
    direction of the Chief Justice or acting Chief Justice of the Court of Appeal,
    be reviewed by that court and that court may if it does not confirm the
    decision,

(a)

vary
    the decision; or

(b)

substitute
such other decision as, in its opinion, should
    have been made.

[17]

Section 680 sets up a two-step process.  The first step serves a leave to appeal-like
    function and requires the Chief Justice or his designate to determine whether
    the matter should go before a panel of the Court of Appeal for a review of the
    merits of the decision made at first instance.  By imposing a leave requirement, Parliament has clearly determined that unlike
    most original bail orders, there should be no automatic review of the bail
    orders referred to in s. 680.  Those
    orders include bail orders made under s. 522 in murder cases:
Gary Trotter,
The Law of Bail in Canada
, 3d ed., looseleaf (Toronto, ON:  Carswell, 2010)
p. 8-22.

[18]

Like any leave to appeal function, s. 680 serves
    to exclude from the appeal process applications that cannot succeed on their
    merits.  To exclude the meritless cases,
    the Chief Justice or his or her designate must make some assessment of the
    merits of the application and its potential for success.  Several cases have required the applicant to
    demonstrate a reasonable prospect of success as a condition precedent to the
    directing of a review under s. 680:
R. v. R.B.B.
(1993), 131 A.R. 175 (C.A.)
    (Stratton J.A. in chambers);
R. v. S.(J.)
,
    [1986] O.J. No. 1425 (C.A.) (McFadyen J.A. in chambers);
R. v. M.T.
, [2008] O.J. No. 1597 at para. 5 (C.A.) (OConnor
    A.C.J.O. in chambers).

[19]

In
R. v. White
(2005), 202 C.C.C. (3d) 295 (Alta. C.A.), Berger J.A., at paras. 6-9, rejects
    the reasonable prospect of success criterion as too onerous and prefers an
    arguable merit test.  In doing so, he
    refers to s. 679, the provision governing bail pending appeal and, in
    particular, to s. 679(3
)(
a), which requires an
    applicant for bail pending appeal to show that the appeal is not
    frivolous.  After pointing out that an
    applicant under s. 680 is presumed innocent while an applicant under s. 679 has
    been convicted, Berger J.A. declares, at para. 7, that it would be a patent
    legal anomaly were an applicant under s. 680 required to show a higher degree
    of merit to the application than was an applicant under s. 679.

[20]

I see no connection between the criteria applicable
    to bail pending appeal in s. 679 and the criteria to be applied in determining
    whether a review should be directed under s. 680.  Section 679 addresses original bail
    applications made as part of the appellate process.  To obtain bail pending appeal, an appellant
    must meet essentially the same criteria that are applicable at the trial stage (s.
    679(3
)(
b)(c)).  In addition to the usual criteria for bail, and because the bail order
    is ancillary to the appellate process, the applicant must show that he has a
bona fide
appeal in the sense that he
    has an appeal that has some potential merit.  The requirement that the applicant show that the appeal is not
    frivolous has less to do with the question of whether the applicant should be
    on bail and more to do with preserving the integrity of the appeal process by
    ensuring that persons with hopeless appeals are not admitted to bail pending the
    inevitable dismissal of those hopeless appeals.

[21]

Section 680, unlike s. 679, is an appeal mechanism.  The applicant has already had a full bail
    hearing on the merits.  Section 680 is
    the means by which an applicant can challenge the correctness of the decision
    made at the original bail hearing.  As
    the correctness of the original decision is central to the s. 680 application,
    it should, in my view, be central to the determination of the Chief Justice or
    his or her designate to direct a review of the original bail order.  Unlike s. 679, which focuses on whether
    appellants should receive bail, s. 680 focuses on whether applicants should be
    allowed to appeal a decision made in respect of bail.  Section 679 does not assist me in determining
    the criteria to be applied in deciding whether to direct a review under s. 680.

[22]

Where a s. 680 application is brought in this
    province, the Chief Justice or his or her designate has the benefit of the
    record at the original bail hearing, often additional material relevant to bail,
    and full argument.  There is no
    impediment to the taking of a hard look at the potential merits of the
    application.  A reasonable prospect of
    success standard allows for a separation at this first stage of the potential
    wheat from the obvious chaff.  In doing
    so, it furthers the due administration of justice.

[23]

When the Chief Justice or his or her designate
    is deciding whether the applicant has a reasonable prospect of success, the
    Chief Justice must bear in mind the nature of the review contemplated at the
    second stage of the s. 680 process:
White
at para.
9.  A
s. 680 review is an appeal and not a
    hearing
de novo
.  The appeal is, however, a broad one.  Appeal courts reviewing original bail orders
    under s. 680 have regularly applied a correctness standard.  Evidence not adduced at the original bail
    hearing may also be received on the s. 680 review:
R. v.
    Daniels
(1997), 35 O.R. (3d) 737 at 747 (C.A.);
R. v. Badgerow
(2010), 260 O.A.C. 273 at paras. 26-27 (C.A.) (Feldman
    J.A. in chambers);
R. v. Rodrigue
,
    [2008] Y.J. No. 13 at para. 11 (C.A.);
R.
    v. Hardiman
(2003), 172 C.C.C. (3d) 211 at paras. 22-28 (N.S.C.A.);
R. v. Wu
(1998), 117 B.C.A.C. 305 at
    para. 6.

V

[24]

Bearing in mind the nature of the s. 680 review
    and the standard of review to be applied, I turn to the arguments advanced by
    the Crown on its application for the order directing a review.  The Crown does not allege an error in law or
    any misapprehension of the evidence.  Nor
    does the Crown indicate that it will seek to produce additional material
    relevant to the question of bail.  The
    Crown argues that in considering the tertiary ground, the bail judge failed to
    give sufficient weight to certain features of the evidence,  [the balance of this
    paragraph refers to evidence adduced at the bail hearing and has been edited
    pending completion of the proceedings to comply with the non-publication order
    of  Justice
Rogin
.
    The full text of the decision is available at the Registry of the court.]

[25]

The motion judges determination that the
    respondents detention was not justified on the primary or secondary ground is
    not challenged.  The tertiary ground is
    to be used sparingly to justify detention:
R. v. R.D.
(2010), ONCA 899,
    at paras. 51-55
.  A
bail judge, in considering the tertiary ground, must take the pulse of the
    reasonable, informed member of the community.  A judge sitting within the community where the homicide occurred and hearing
    the bail application in that community is in a better position to perform that
    function than a panel of this court.  That
    is not to say that bail orders that turn on the tertiary ground are immune from
    review under s. 680.  However, where it
    is not suggested that the bail judge misapplied the law, misapprehended the
    evidence, or reached an unreasonable conclusion, I think it unlikely that a
    panel will second guess the bail judge on the proper application of the
    tertiary ground.

[26]

Accepting that s. 680 contemplates a correctness
    standard of review that does not mean that every decision can be reviewed on a
    correctness standard.  Some decisions
    involve the exercise of a broad discretion based on the application of general
    principles to a specific fact situation.  In some fact situations, the exercise of that broad discretion will
    quite properly admit of different decisions.  Those decisions cannot be classified as either right or wrong, but
    only as a proper exercise of the discretion.

[27]

A decision to grant or refuse bail based on the tertiary
    ground involves a careful assessment of the interaction of subtle factors that
    are difficult to measure and which readily admit of different assessments by
    reasonable people.  An appellate court
    reviewing that decision must take into account the nature of the decision and
    recognize the clear advantage that the local judge has over the appellate court
    in making the kinds of assessments required by the criteria relevant to the tertiary
    ground.

[28]

This was a close call on bail.  This is a case that falls into that category
    of cases where reasonable judges could reach different conclusions on the
    question of bail.  However, absent any claim
    that the bail judge fell into legal error, misapprehended material evidence, or
    reached an unreasonable result, I do not think there is any realistic prospect
    that a panel of this court would reverse the bail judges exercise of his
    discretion on the tertiary ground.

[29]

The application is dismissed.

RELEASED:
DD  FEB
    25 2011

Doherty J.A.


CITATION:
R. v. Glave, 2011
          ONCA 111

DATE:  20110209

DOCKET: C47616

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karl Glave

Appellant

Christopher R. Murphy, for the appellant

Lisa Joyal, for the respondent

Heard and released orally:
January 28, 2011

On appeal from the convictions entered by Justice F. Marrocco
          of the Superior Court of Justice dated February 1, 2006 and the sentence
          imposed on February 14, 2006.

ENDORSEMENT

[1]

The appellant was charged with various offences arising
    out of four robberies.  The trial judge
    eventually convicted the appellant of two of the robberies and acquitted the
    appellant on two of the robberies.  The
    appeal relates to the convictions arising out of one of the robberies.

[2]

Identification was the main issue on all of the robbery
    charges.  It is evident from the trial
    judges reasons and the different verdicts he arrived at on the different
    counts that he was fully aware of the frailties of identification evidence and exercised
    the requisite caution in considering that evidence.

[3]

We see no error in the trial judges review of the
    evidence relating to the robbery put in issue on the appeal or his analysis of
    that evidence.  The real issue on this appeal,
    and the issue stressed by counsel for the appellant, is the reasonableness of
    the conviction on the robbery charge challenged on this appeal.

[4]

We are satisfied that the verdict was not
    unreasonable.  The victim of the robbery
    had a very good opportunity to observe his assailant, twice prior to the
    robbery and again during the actual robbery.  The victims description of the assailant, while somewhat generic, was
    consistent with the appellants appearance in several respects.

[5]

The victim picked the appellants photograph out of a
    photo array shown to him some six or seven weeks after the robbery.  He did so without hesitation.  The manner in which the photo array was
    conducted was the subject of several submissions on appeal.  We agree with counsel that the photo array
    was not conducted in a manner that accorded with all of the various guidelines
    that have been set down in the case law.  The photo array was not perfect by any means.  However, having regard to the totality of the
    circumstances surrounding the victims identification of the appellants
    photograph, we are satisfied that a trier of fact could, acting reasonably,
    accord significant weight to the victims identification of the appellants
    photograph.

[6]

Counsel for the appellant, in the course of challenging
    the reliability of the identification in the photo array, stressed that the
    photograph of the appellant identified by the victim was taken five years earlier
    in 1999.  A more recent photograph was
    not available at the time of the photo array.  Counsel points to the photograph of the appellant taken in 2004 shortly
    after the robbery and available after the photo array was administered and
    argues that the 2004 picture makes it clear that at the time of the robbery in
    2004, the appellant did not look like the photograph picked out by the victim
    in the photo array.  Counsel submits that
    the selection of the 1999 photograph does not provide reliable evidence that
    the appellant was the person who robbed the victim in 2004.

[7]

The two photographs demonstrate that the appellants
    facial features had changed somewhat between 1999 and 2004.  The appellant had obviously put on weight and
    his face was fuller in 2004 than it was in 1999.  The trial judge also, of course, had the
    benefit of actually seeing the appellant in the courtroom.

[8]

In our view, the difference in the appearance of the
    appellant in the two photographs was not such as to compel the conclusion that
    it would be unreasonable to rely on the witness identification of the
    appellant from the 1999 photograph as evidence that the appellant was the
    person who robbed him in 2004.

[9]

The police officer who was familiar with the appellant
    indicated that while the two photographs certainly showed that the appellants
    features had changed somewhat, it was obvious to him that the photographs were
    of the same person.  We think it was open
    to the victim to reach the same conclusion.

[10]

In addition to the identification evidence already
    summarized, there was evidence from the cell phone records placing the appellant
    in the vicinity of the robberies at the relevant time.

[11]

The appellant did not testify.  We are entitled to consider his failure to
    testify in assessing the reasonableness of the verdict.

[12]

As indicated at the outset, we are satisfied that the
    verdict was reasonable.  The appeal is
    dismissed.

Doherty J.A.

J.I. Laskin J.A.

E.E. Gillese J.A.


CITATION:
R. v. Graham, 2011
          ONCA 138

DATE: 20110222

DOCKET: C52798

COURT OF APPEAL FOR ONTARIO

MacPherson, Blair and Rouleau JJ.A.

BETWEEN:`

Scott Graham

Appellant

and

Her Majesty the Queen

Respondent

Scott Graham, in person

Ian Smith, Duty Counsel

Matthew Sullivan, for the Crown

Heard: February 9, 2011

On appeal from the judgment of Justice Albert Roy of the
          Superior Court of Justice, dated September 16, 2010, denying the appellants
          application for a writ of
habeas corpus
          ad subjiciendum.

R.A. Blair J.A.:

Background and Facts

[1]

The appellant seeks to set aside the judgment of
    Justice Roy of the Superior Court
of
Justice, dated
    September 16, 2010, denying his application for a writ of
habeas corpus ad subjiciendum
.

[2]

On July 8, 2009 the appellant was sentenced to 26
    months in prison for various drug-related offences.  Because he was a first-time federal offender,
[1]
he was granted accelerated day parole on December 1, 2009 and released into the
    community  subject to parole conditions  on January 8, 2010.  Shortly thereafter, however, on January 28,
    2010, the appellants parole privileges were suspended by his parole officers
    supervisor.  Several reasons were cited
    for the suspension, including the appellants failure to comply with certain
    financial disclosure obligations that formed a condition of his parole, his
    failure to provide information regarding his associations, and his suspected
    involvement in drug-related conduct.

[3]

The appellant challenged his parole suspension by way
    of
habeas corpus
in Superior Court.  At the same time, the suspension was
    automatically under review pursuant to the National Parole Board (NPB) review
    process established under the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20 (CCRA).

[4]

On September 16, 2010, the application judge denied the
habeas corpus
proceeding, concluding
    that the CCRA regime constituted a complete, comprehensive and expert
    procedure for review of the NPBs administrative decision and that he should
    therefore decline
habeas corpus
jurisdiction.  Subsequently, on October 7, 2010, the NPB
    affirmed the suspension and revoked the appellants parole.  The appellant then appealed to the Appeal
    Division of the NPB, which dismissed his appeal on November 17, 2010.

[5]

The appellant now seeks to overturn the decision of
    Justice Roy and to have this court quash the decision of his parole officers supervisor
    suspending his parole.

[6]

For the reasons that follow, I would dismiss the
    appeal.

Law and
    Analysis

[7]

There is no dispute that provincial superior courts
    retain an important jurisdiction to hear
habeas
    corpus
applications brought by a prisoner alleging unlawful restriction of his
    or her liberty, and do so in spite of the fact that such allegations may also
    be challenged elsewhere.  As
habeas corpus
is not a discretionary
    remedy, but rather one that issues as of right on proper grounds being shown, Superior
    Courts are  and should be  reluctant to decline such jurisdiction when called
    upon to exercise it.  However, they may
    do so in some circumstances, and one circumstance where the Supreme Court of
    Canada has indicated it is appropriate to decline jurisdiction is where there
    is in place a complete, comprehensive and expert procedure for review of an
    administrative decision:
May v. Ferndale
    Institution
, [2005] 3 S.C.R. 809.

[8]

At para. 44 of that decision, Justices LeBel and Fish,
    for the majority, summarized their conclusions in this regard:

To
    sum up, therefore, the jurisprudence of this Court establishes that prisoners
    may choose to challenge the legality of a decision affecting their residual
    liberty either in a provincial superior court by way of
habeas corpus
or in the Federal Court by way of judicial
    review.  As a matter of principle, a
    provincial superior court should exercise its jurisdiction when it is requested
    to do so.
Habeas corpus
jurisdiction should not be declined merely because
    another alternative remedy exists and would appear as or more convenient in the
    eyes of the court.  The option belongs to
    the applicant.  Only in limited circumstances
    will it be appropriate for a provincial superior court to decline to exercise
    its
habeas corpus
jurisdiction.  For instance, in criminal law, where a
    statute confers jurisdiction on a court of appeal to correct the errors of a
    lower court and release the applicant if need be,
habeas corpus
will not be available (citation omitted).
Jurisdiction should also be declined where
    there is in place a complete, comprehensive and expert procedure for review of
    an administrative decision
(citations omitted).

(Emphasis
    added.)

[9]

The rationale underlying the exceptions referred to
    above is rooted in the risks associated with parallel procedures and the
    ineffective use of public resources flowing from such procedures.  Cory J. succinctly explained these policy reasons,
    in the NPB context, in
Steele v. Mountain
    Institution
, [1990] 2 S.C.R. 1385, at p. 1418:

Since any error that may be committed occurs in the
    parole review process itself, an application challenging the decision should be
    made by means of judicial review from the National Parole Board decision, not
    by means of an application for habeas corpus.  It would be wrong to sanction the establishment of a costly and unwieldy
    parallel system for challenging a Parole Board decision.  As well, it is important that the release of
    a long-term inmate should be supervised by those who are experts in the field.

[10]

The question here, then, is whether the CCRA provides a
    complete, comprehensive and expert procedure for administering the parole
    review process.  In my view, it
    does.  In that respect, I agree with the
    application judge and with other Canadian appellate and lower courts that have
    come to the same conclusion:  see
Armaly v. Canada (Parole Services)
(2001), 299 A.R. 188 (C.A.);
Lord v.
    Coulter
(2009), 266 B.C.A.C. 122 (C.A.);
R v. Latham
(2009), 324 Sask. R. 87 (C.A.);
Latham v. Canada
(2006), 288 F.T.R. 37 (F.C.T.D.);
McGrayne v. Canada (Attorney General)
,
    [2002] O.T.C. 191 (Sup. Ct.);
R v.
Elguindy
, 2010 ONSC 1757.

[11]

The appellant relies on the decision of the British
    Columbia Supreme Court in
Woodhouse v.
    William Head Institution
, 2010 BCSC 754 to the contrary.  In that case, Walker J. concluded that there
    was an impermissible gap in the CCRA procedure because it exposes an inmate to a
    period of detention of up to 30 days
[2]
before his or her suspension must be referred to the NPB for review and, even
    then, does not specifically provide the NPB with the power to review the
    suspension for error of law nor specifically direct it to inquire into the
    merits of the parole officer supervisors decision at the review level.  Here, the appellant argues, amongst other
    things, that there is no legal authorization for the imposition of financial
    terms of disclosure as a condition of his parole release.

[12]

Respectfully, I do not accept the reasoning in
Woodhouse
.

[13]

With respect to a suspension of parole, the statutory
    scheme works as follows.  A person
    designated by name or by position, by the Chairperson of the Board or by the
    Commissioner may, by warrant, suspend the parole, authorize the apprehension
    of the offender, and authorize the recommitment of the offender until the
    suspension is cancelled, the parole is revoked or the sentence has expired: s.
    135(1).  A parole officer supervisor is
    such a person:
Commissioners Directive
    No. 718
:
Designation of Persons With
    Authority for Suspension Under s. 135 of the Corrections and Conditional
    Release Act,
s. 10, June 16, 2008 (available at
http://www.csc-scc.gc.ca/text/plcy/cdshtm/718-cd-eng.shtml
.
     Section 107(1) grants the NPB exclusive
    jurisdiction and absolute discretion to grant, terminate or revoke parole, or
    to cancel a suspension, termination or revocation of parole.  Where the offender is recommitted, the parole
    officer supervisor must forthwith review the offenders case and either cancel
    the suspension or refer the matter to the NPB for review within a tight
    statutorily defined time frame (within 14 days if the offender is serving a
    sentence of less than two years; within 30 days in any other case): s.
    135(3).  The NPB must then review the
    case (the Board, for review purposes) and, within the 90-day period
    prescribed by the regulations, either cancel the suspension or terminate or
    revoke the parole: s. 135(4) and (5).

[14]

During this review process, where the offender is
    serving a sentence of two years or more  as the appellant is  the Board will
    take into account the offenders conduct since his or her release, including
    whether the possibility of re-offending will pose an undue risk to society: s.
    135(5).  The process, then, is not simply
    point-in-time.  It involves more than a
    review of whether the parole officer supervisors decision betrays an error of
    law or is otherwise wrong on its merits.  But s. 135 is not to be read so narrowly as to preclude the Board from
    considering those factors, for  as the application judge noted  the decision
    of the parole officer supervisor is itself a part of the process transpiring
    since the offenders release.  The Board
    will undoubtedly take into account the substantive reasons for suspending
    parole as part of the overall review.

[15]

The Boards review decision is, in turn, subject to an
    appeal to the Appeal Division of the NPB, pursuant to s. 147.  The statutory grounds for such an appeal are
    wide-ranging and include jurisdictional error, error in law, and the failure to
    observe the principles of fundamental justice.  Finally, the decision of the Appeal Division is subject to judicial
    review in the Federal Court.

[16]

This, in my view, is the very type of statutory regime
    envisioned in the
habeas corpus
exception articulated in
May v. Ferndale
    Institution
.  The CCRA establishes a
    complete and comprehensive procedural regime for the review and appeal of a
    parole officer supervisors decision to suspend parole.  In addition, the process is carried out at
    its various stages by experts in the parole field.

[17]

True, there is a short timeframe during which the
    offender whose parole has been suspended may be detained while the parole officer
    supervisor decides whether to cancel the suspension or to refer the matter to
    the NPB.  During that period of detention
    the offender's liberty is restricted in a way that would otherwise entitle him
    or her to challenge the legality of the detention by
habeas corpus
.  That in
    itself is not sufficient to take the CCRA scheme out of the
May
exception, in my view.  First, the delay is part of the regime
    allowing the parole officer supervisor to reconsider the decision.  Further, as a practical matter, a
habeas corpus
application is unlikely to
    be determined more quickly than the 14-day/30-day timeframe within which the
    parole officer supervisors decision to suspend must either be cancelled or
    referred by the parole officer supervisor into the NPB process for review.

[18]

As Brown R.S.J. recently noted in
Elguindy
, there may be
    exceptional circumstances where the statutory review and appeal regime
    established in the CCRA, comprehensive on its face, is so ineffective as to
    warrant the exercise of
habeas corpus
jurisdiction.  However, this is not one
    of those cases.

[19]

The decision whether to decline
habeas corpus
jurisdiction is discretionary.
[3]
The application judge made no error in law or
    principle and, in my view, was correct in declining to exercise the Superior
    Courts
habeas corpus
jurisdiction.

Disposition

[20]

The appeal is therefore dismissed.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree Paul Rouleau
    J.A.

RELEASED:  February
    22, 2011

[1]
The
    appellant had a prior criminal record for a variety of offences, but had not
    previously been sentenced to a penitentiary term of imprisonment.

[2]
Where
    the sentence imposed was less than two years imprisonment, the detention is
    for a period of up to 14 days.

[3]
Although, once jurisdiction is accepted and it is established that the
    applicants detention is illegal, the decision whether to grant
habeas corpus
is not discretionary:
May v. Ferndale Institution,
at para.
33, citing Sharpe, Robert J.,
The
    Law of Habeas Corpus
, 2
nd
ed. (Oxford: Clarendon Press, 1989) at
    58.


CITATION:
R. v. Kumar, 2011
          ONCA 120

DATE:  20110210

DOCKET: C48821

COURT OF APPEAL FOR ONTARIO

Rosenberg, Armstrong &
Rouleau
JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Dinesh
Kumar

Appellant

James
Lockyer
and Alison Craig, for
          the appellant

Gillian Roberts, for the respondent

Heard: January 20, 2011

On appeal from the conviction
          entered by Justice Edward F.
Ormston
of the Ontario
          Court of Justice (Criminal Division), dated December 3, 1992.

By The Court
:

[1]

This appeal originates in the reinvestigation of cases
    where Dr. Charles Smith had provided opinions and evidence as to the cause of
    death of children.  In the early hours of March 18, 1992,
Gaurov
Kumar, then five weeks old, stopped breathing and
    was rushed to hospital. Breathing was restored, but
Gaurovs
brain was badly damaged. Two days later, on March 20, 1992, life support was
    terminated and
Gaurov
was declared dead.   Based
    on Dr. Smiths opinion that the baby was a victim of Shaken Baby Syndrome
    (SBS), the appellant,
Gaurovs
father, who had been
    caring for the baby at the time of his collapse, was charged with murder.
    He eventually pleaded guilty to criminal negligence causing death, and the
    murder charge was withdrawn.  After a series of investigations of cases
    where Dr. Smith provided an opinion, in 2008, the Crown consented to an extension
    of time to allow the appellant to appeal his conviction.  The appellant
    seeks to have fresh evidence admitted, his guilty plea set aside, and an
    acquittal entered.  The Crown agrees with that disposition.  For the
    following reasons, the fresh evidence is admitted.
the
guilty plea is set aside, the appeal is allowed and an acquittal entered.

THE FACTS

[2]

The appellant is now 44 years of age. He immigrated to
    Canada from India with his wife,
Veena
, in 1991. They
    had their first child,
Saurob
, just before moving to
    Canada. Their second son,
Gaurov
, was born on
    February 11, 1992.  On the evening of the
    birth,
Veena
had a seizure in the hospital.  She was diagnosed with a brain tumour and
    remained in hospital for one month.

[3]

The appellants version of events on the evening of
    March 17, 1992 was as follows.  The
    appellant was at home with his wife and their two sons. At around midnight,
Gaurov
woke up crying.  The appellant fed him milk from a bottle, burped him and placed him back
    in his crib where he fell asleep.  At
    12:30 a.m.,
Gaurov
woke up with a scream.  The appellant picked him up, and realized he
    was not breathing and was turning blue.  He told his wife something was wrong.  The appellant gave
Gaurov
CPR including mouth
    to mouth.
Gaurov
was still not breathing.  The appellant
    called his brother-in-law to ask what to do (he did not understand the 911
    system).  His brother-in-law told him to
    call 911.  Although neither the appellant
    nor his wife spoke English very well, both spoke to the emergency operator and
    soon after emergency personnel arrived at their home. Mrs. Kumars brother and
    sister-in-law also arrived.

[4]

The aunt was seen by emergency personnel to give
Gaurov
three to four... good hard shakes ... but not ... a
    violent shake.  Emergency personnel then
    took over and administered first aid to
Gaurov
.  He was taken to Scarborough Centenary
    Hospital and his breathing was restored.  The appellant explained to the physician as best he could what had
    happened.
Gaurov
was diagnosed by Dr. Beaulieu as having suffered from
cardiorespiratory
arrest secondary to choking spell. A
    secondary diagnosis was also provided
anemia
of unknown
etiology
, possible central
    nervous system haemorrhage.

[5]

Gaurov
was transferred that
    same morning to the Hospital for Sick Children and put on life-support.  On Friday, March 20, 1992, the life support
    was removed and
Gaurov
died.  His brother
Saurob
was immediately apprehended at the hospital by Childrens Aid.
Saurob
was returned
    to his mother following a family court proceeding on July 2, 1992.

The Autopsy

[6]

On March 21, 1992, the day after
Gaurovs
death, Dr. Charles Smith conducted the autopsy at the Hospital for Sick Children.  He found extensive haemorrhaging within the
    brain, behind both retinas and around the spinal cord.  It was his opinion that these critical
    medical abnormalities had all the earmarks of injuries sustained after an
    episode of Shaken Baby Syndrome. Dr. Smith solidified his opinion after conducting
    further tests, declaring that the injuries were definitely not accidental in
    nature and because of the absence of external
trauma,
the injuries were consistent with Shaken Baby Syndrome. Additionally he
    explained that the injuries were probably a result of continuous shaking as
    opposed to a single violent shake.

[7]

In his
post-mortem
report, Dr. Smith also noted
    an old chronic subdural hematoma in the occipital lobe (located in the back of
    the skull), the
tentorium

cerebelli
(an extension of the
dura
on which the lobes rest)
    and the cervical cord, which he wrote may have been as old as five weeks i.e.
    as a result of birth trauma.  Dr. Smith
    certified the cause of death as Head Injury.  Dr. Dirk
Huyer
, a
    physician who was a member of the Suspected Child Abuse and Neglect Program
    (the SCAN unit) at the Hospital for Sick Children agreed with Dr. Smiths
    conclusion.  Dr.
Huyer
had no training in pathology.

The Appellants Arrest and Guilty Plea

[8]

On June 26, 1992, the appellant was charged with second
    degree murder.  He was released on bail
    on July 10, 1992.  He was represented by
    Mr. David
Gorrell
and Mr.
Dhaman

Kissoon
. In preparation for trial, the defence
    retained a hospital pathologist, Dr. Jay Naidoo of the Queensway General
    Hospital, to review Dr. Smiths findings.  Dr. Naidoo had no training in forensic pathology.  He verbally advised Mr.
Gorrell
that he agreed completely with Dr. Smiths conclusions of baby-shaking, and
    consequently he was not asked to provide a written report.

[9]

Unexpectedly, the Crown offered to withdraw the second
    degree murder charge if there was a plea to criminal negligence causing death. Subsequently,
    on December 3, 1992, the appellant entered a guilty plea before
Ormston
J. of the Provincial Court (Criminal Division) on a
    new Information alleging Criminal Negligence Causing Death.  Justice
Ormston
accepted a joint submission on sentence and sentenced the appellant to 90 days
    imprisonment to be served intermittently, followed by two years probation.  The transcript of that proceeding is no
    longer available.

THE FRESH EVIDENCE

Explanation for Guilty Plea

[10]

Mr.
Gorrell
testified at the
Inquiry

into Paediatric Forensic
    Pathology
(the
Goudge
Inquiry
), that the appellant had
    maintained his innocence from the outset of his case, until the day he attended
    Mr.
Gorrells
office to provide him with written
    instructions to the contrary, and to accept the Crowns offer. Mr.
Gorrell
prepared a plea Direction for the appellant. He
    believed that one of the main reasons the appellant pleaded guilty may have
    been to ensure that his family could remain together, and to avoid losing
    custody of his surviving son forever.   He further noted that the appellant ran the risk of deportation had he
    been convicted of second degree murder or manslaughter and he so advised the
    appellant.

[11]

The appellant filed an affidavit on this appeal. In his
    affidavit, he explained that after
Gaurovs
death, he
    and his wife were very sad and devastated. He said he cooperated with police
    because he wanted to know why
Gaurov
died. He was
    shocked when he was arrested, and felt confused, frightened and ashamed before
    his family and the community.

[12]

He related in his affidavit (confirmed by medical
    records) that, in 1991, his son
Saurob
had had an experience
    as an infant, similar to what happened to
Gaurov
, fainting
    suddenly and turning blue.  Three weeks
    after
Saurobs
apprehension by the Childrens Aid
    Society, CAS authorities placed him in the care of
Veenas
brother. Neither the appellant nor his wife was allowed to be alone with
Saurob
. After the appellant was released on bail, one of
    the conditions of his release was no contact with
Saurob
except in the presence of a CAS supervisor.

[13]

The appellant explained that he was in a new country
    with its own culture, and he did not speak English very well. He was told that
    he would be deported if convicted of murder or manslaughter but assured that
    the police would not report his case to immigration if he accepted the plea.
    The appellant explained how the plea would alleviate many pressures for him and
    his family. At the time, his wife was recovering from surgery and could not
    cope alone with an infant and no income. The family was afraid of the murder
    charge, and his defence counsel told him there was no way to challenge the
    testimony of Dr. Smith. They wanted to put the charge behind them. So after
    much discussion with his family, the appellant decided to plead guilty even
    though he maintained that he never harmed
Gaurov
in
    any way. Importantly, his probation order did not prevent the appellant from
    seeing
Saurob
.

[14]

After serving his sentence, the appellant still felt
    the shame of having to admit to causing
Gaurovs
death. He and his wife decided not to have another child. They think about
Gaurov
every day. While his wife and
Saurob
became Canadian citizens, the appellant never applied for citizenship for fear
    that his conviction could lead to an immigration investigation.

Chief Coroners Review and the
Goudge
Inquiry

[15]

This case came to light again during a review between
    2005 and 2007 by the Office of the Chief Coroner of Ontario of criminally
    suspicious and homicide cases in which Dr. Charles Smith performed an autopsy
    or provided an opinion.  The results of
    the review were announced in April 2007, and this case was identified as one of
    twenty where the external reviewers had significant disagreements with Dr.
    Smiths opinion.  The reviewer, Dr. Helen
    Whitwell, a forensic pathologist and
neuropathologist
from the United Kingdom, concluded in her Autopsy Report Review Form dated
    December 5, 2006, that while the opinion provided by Dr. Smith was in
    conformity with accepted opinion in 1992, [t]his would not be the usual view
    of the UK forensic pathologists now [although it] may well still prevail with
    the paediatricians.

[16]

The Chief Coroners review eventually led to the
Inquiry
    into Paediatric Forensic Pathology
conducted by Justice
Goudge
of this court. The
Inquiry
retained
    Dr. Whitwell to provide a more detailed medico-legal report of
Gaurovs
death, and testify before the inquiry.  Dr. Whitwell identified a number of issues of
    potential concern in this case, but did not provide a conclusion about the
    cause of death, recommending that this case be referred for review.  The issues she flagged as concerning were as
    follows:

First, the significance of the old [subdural
hemorrhage
], likely an injury from birth, and the question
    of whether or not re-bleeding can occur, and, if so, how much force, if any,
    may be necessary.

Second, the possibility that resuscitative shaking
    could have caused damage, particularly in the context of a chronic subdural
hemorrhage
.

Third, whether baby
Gaurov
even had the so-called triad of signs (subdural
hemorrhage
(SDH), retinal
hemorrhage
(RH), hypoxic-ischemic
    encephalopathy (HIE)) as no RH were observed when he was first examined in the
    emergency room at Scarborough Grace.

Fourth, the specificity of the
    triad alone, without any other evidence, pathological or circumstantial, of
    abuse.

[17]

Following the
Inquiry
the appellant brought an application for an extension of time to appeal his
    conviction.  With the consent of the
    Crown, that application was granted.

Crown Experts post-
Goudge
Inquiry

[18]

The Crown retained two experts to explore the issues
    identified by Dr. Whitwell, and to reconsider the case in light of current
    medicine:  Dr. Michael
Pollanen
, the Chief Forensic Pathologist for Ontario, and
    Dr. William
Halliday
, a paediatric
neuropathologist
who currently works at the Hospital for
    Sick Children.

(
i
) Dr.
Pollanen

[19]

In a lengthy report, Dr.
Pollanen
has provided a helpful review of the diverse views concerning the validity of Shaken Baby Syndrome.  There are a number of controversies
    surrounding Shaken Baby Syndrome.  Most
    prominent is the meaning that should be attached to the triad of symptoms considered
    to be indicative of SBS:  thin film
    subdural haemorrhage (SDH), widespread bilateral retinal haemorrhage (RH), and hypoxic
    ischemic encephalopathy (HIE).  In the
    early 1990s, when the autopsy was conducted in this case, these findings were
    widely accepted to be diagnostic of non-accidental head injury.  In effect, the infant had been shaken to
    death with such force that any normal adult would realize that the infant would
    be seriously injured.   The current view
    of forensic pathologists, although not necessarily clinicians, is that the
    triad is at worst suspicious, but can no longer be considered absolute proof of
    traumatic head injury in the absence of other evidence.  There are some experts who hold the view that,
    in fact, there is no such thing as shaken baby syndrome
;  it
is impossible to apply sufficient
    force to an infant by shaking without there being other injuries, such as
    trauma to the spine and neck areas.

[20]

The role played by evidence of the triad and SBS in
    convictions of caregivers has been examined at length on two occasions by the England
    and Wales Court of Appeal, (Criminal Division) in
R. v. Harris
, [2005] EWCA
Crim
1980 and
R. v. Henderson
, [2010] EWCA
Crim
1269.  That
    court having heard extensive evidence from many of the leading experts noted
    the evolution of thinking about the triad and SBS.  In
Henderson
,
    the most recent case, at paragraph 6, the court made the important point that
    the courts cannot finally resolve a medical controversy: the conclusion of any
    court as to the medical evidence, whether at first instance or on appeal, is
    dependent upon the evidence before that court.  These comments are particularly apt in this case.  The issues of the triad and SBS were not
    fully argued before us because the Crown concedes that the appeal must be
    allowed.  The fresh expert evidence,
    which we describe in greater detail below, provides a basis for finding that
    the conviction in this case was unsafe without having to resolve any
    controversy about SBS.

[21]

Dr.
Pollanen
noted that
Gaurov
had no scalp injuries, no skull fracture, and no
    diffuse or traumatic axonal injury (forms of severe damage to nerve cells
    (axons) in the brain caused by force).  With
    respect to the triad, Dr.
Pollanen
noted that in
Gaurovs
case, retinal haemorrhages had not been observed
    when
Gaurovs
eyes were first examined on arrival at
    the hospital. He hypothesized that the retinal haemorrhages developed later due
    to raised intracranial pressure from hypoxic-ischemic encephalopathy, rather
    than shaking.  He excluded resuscitative
    shaking (as may have been observed by the emergency personnel firefighters who
    first attended) as the cause of the injuries to the brain since the infant was
    dead at the time of the shaking.

[22]

Dr.
Pollanen
concluded that
    he was unable to establish that
Gaurov
was killed by
    shaking, and that although there are medical findings that could be interpreted
    as evidence of shaking or head injury, those findings were not sufficiently
    determinative of that conclusion given the current state of medical and
    scientific literature. Dr.
Pollanen
also cautioned that
    the science of paediatric head injury is still evolving, and that his views as
    described in his report are based on past and current literature, and may well
    be assessed differently in the future.  Dr.
Pollanen
suggested that other experts should be
    consulted in other areas including neuropathology, child abuse paediatrics,
neuroradiology
, ophthalmology and biomechanics.

(ii) Dr.
Halliday

[23]

Dr.
Halliday
disagreed with Dr.
Pollanens
opinion that the retinal haemorrhages were likely not present on initial
    examination at the hospital.  He believed
    that they were there but not seen by the examiner.  Further, in his opinion, the (likely)
    birth-related old subdural haemorrhage does not offer any particular insights
    to the case.

[24]

Dr.
Halliday
wrote that the evidence
    would cause a physician to be very suspicious that the appellants case
    represents a case of non-accidental head injury or abusive head trauma (modern
    terms for Shaken Baby Syndrome). He explained that today, the finding of the
    triad is considered to be suspicious, but not
pathognomonic
(necessarily characteristic) of abusive head injury. He also noted that the
    fact that his aunt shook
Gaurov
after he had
    collapsed added complexity to the case, since the autopsy would reflect that
    event as well.  Dr.
Halliday
concluded that, in the particular circumstances of the case, the cause of death
    is undetermined.

Appellants Experts post-
Goudge
Inquiry

[25]

Following receipt of the Crown reports, the appellant
    retained three experts, Dr. Chris Van
Ee
, a
    biomechanical engineer from Michigan, Dr. Jan
Leetsma
,
    a
neuropathologist
from Chicago, and Dr.
Waney

Squier
, a
neuropathologist
from Oxford.

(
i
) Dr. Van
Ee

[26]

Dr. Van
Ees
expertise does not enable him to provide an opinion as
    to cause of death for
Gaurov
, but he was able to
    provide an opinion on whether shaking could have caused
Gaurovs
head injuries. In his report, Dr. Van
Ee
explained
    that severe rotational acceleration/deceleration forces can cause subdural
    bleeding.  Dr. Van
Ee
reported that science does not support Shaken Baby Syndrome theories for two
    reasons: (a) shaking by a human cannot alone cause head injuries in a normal
    baby, (b) vigorous shaking of a baby would generally result in trauma to the
    spine and neck areas; injuries that have not been historically observed in
    suspected Shaken Baby Syndrome cases.

[27]

Dr. Van
Ee
noted that
Gaurov
did not have any notable chest or neck injuries. He
    concluded that in light of all the facts, in his opinion there was no
    bio-mechanical evidence that
Gaurovs
injuries were
    caused by shaking.

(ii) Dr.
Leestma

[28]

In his report on
Gaurovs
case, Dr.
Leestma
discussed his own research as well
    as that of others that has discredited Shaken Baby Syndrome. He stated that
    based on todays science, Shaken Baby Syndrome must remain an unproven
    hypothesis with no scientific, medical or legal significance.

[29]

Dr.
Leestma
reviewed the
    circumstances of
Gaurovs
death and concluded that he
    likely died as a result of his birth injury (increased intracranial pressure
    caused by chronic subdural fluid collections with recent bleeding) and not from
    abusive head trauma whether with or without shaking. He noted that while
non‑accidental
injury cannot be excluded, there is no
    positive evidence for it. A defensible and logical conclusion is that the child
    died from natural disease processes and their complications.

(iii) Dr.
Squier

[30]

In her report, Dr.
Squier
noted that Dr. Smiths diagnosis seems to have been based on the triad of
    subdural haemorrhages, retinal haemorrhages and brain swelling.  Dr.
Squier
spent
    some time in her report reviewing the causes of the triad, both natural and
    non-accidental.  In her view, the
    presence of
Gaurovs
old and chronic subdural haemorrhages
    was very significant.  She noted that
    birth-related subdural bleeding is common and that re-bleeding is commonly seen
    by microscopy in any baby with a chronic subdural membrane. This re-bleeding results
    from the vulnerability of the thin walled vessels in the membrane to leaking
    and bleeding, which may occur without trauma.

[31]

Dr.
Squier
concluded that the
    evidence indicates
Gaurov
developed a subdural
    haemorrhage at birth.
Neuropathological
observations are those of fresh bleeding
    into an older, healing subdural membrane consistent in appearance with having
    originated at birth. The history suggested that the baby choked and may have
    aspirated vomit or milk.  Choking could
    have been initiated by a seizure or have been a spontaneous event in the baby
    compromised by the presence of a healing subdural membrane. She concluded that
    there were no features which indicate violence or inflicted injury.

The Parties Positions

[32]

As a result of these expert reports the Crowns
    position is that the
prosecution  can
no longer establish a cause of
    death, let alone a homicidal cause of death.  Given that the Crowns case relies entirely on medical evidence and the
    appellant has explained his guilty plea, the Crown concedes that the conviction
    is unreasonable and should be set aside and an acquittal entered.

[33]

Counsel for the appellant submits that the fresh
    evidence has explained the guilty plea and that the appellant should be
    permitted to withdraw the plea to avoid a miscarriage of justice.  The fresh evidence also establishes that the
    science concerning SBS and the triad has evolved to the point where the
    conviction, which was based solely on expert evidence, was unreasonable.  The appellant goes further and submits that
    looking at the other circumstantial evidence, it is clear that the appellant
    did not cause the death of his child.

ANALYSIS

The Guilty Plea

[34]

As this court explained in
R. v.
Hanemaayer
(2008), 234 C.C.C. (3d)
    3 and
R. v. T. (R.)
(1992), 10 O.R.
    (3d) 514, even though an appellants plea of guilty appears to meet all the
    traditional tests for a valid guilty plea, the court retains a discretion, to
    be exercised in the interests of justice, to receive fresh evidence to explain
    the circumstances that led to the guilty plea and that demonstrate a
    miscarriage of justice occurred.  In our
    view, this is one of those cases.  The
    circumstances are compelling.  At the
    time he pleaded guilty, the appellant was facing a charge of second degree
    murder.  He was relatively new to Canada
    and was unfamiliar with the language and the legal system.  At the time of the infants death, his wife
    had just returned from hospital after major surgery for a brain tumour.  He was facing loss of his liberty for at
    least ten years, loss of custody of his remaining child
and  deportation
.  Competent counsel had been unable to obtain
    opinion evidence to refute the opinion of the then leading expert in the
    province that the appellant had intentionally caused the death of his
    child.  Like in
Hanemaayer
, the appellant faced a
    terrible dilemma.  The justice system now
    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.

The Fresh Expert Evidence

[35]

It is important to place the expert evidence in its
    proper context.  This appeal differs from
    some of the other cases recently heard by this court where an opinion by Dr.
    Charles Smith was at the heart of the case.  The opinion given by Dr. Smith in 1992 was one that would have been
    supported by many other experts and, in fact, was apparently supported by a
    pathologist consulted by the defence at the time.  Medical science has now advanced to a point where
    the existence of the triad of symptoms alone, while suspicious, is not
    diagnostic of non-accidental head injury.   When the appellant was charged and pleaded
    guilty there was nothing but the triad to support the prosecution case of
    intentional infliction of injury.

[36]

There are further particular problems in the
    appellants case.  Based on Dr.
Pollanens
opinion, it may be that the triad was not even
    present, in which case even the suspicion of Shaken Baby Syndrome is not
    supported.  The existence of the old
    subdural haematoma, which probably occurred at birth, is another complicating
    factor.  It is the opinion of one of the
    defence experts that the death could have been caused by natural disease
    processes and their complications, possibly associated with the chronic
    subdural haematoma.

[37]

For the reasons given earlier, this is not an
    appropriate case to resolve the issues surrounding the triad and Shaken Baby
    Syndrome.  Based on the record presented
    in this case and given the concessions by Crown counsel, it is sufficient to
    say that the appellants conviction is unreasonable.  There is no circumstantial evidence to
    support a finding that the appellant was responsible for his childs death and
    the medical evidence is inconclusive.  What evidence there is shows the appellant to have been a loving parent
    who pleaded guilty because of the enormous stress he was under at the
    time.  As appellants counsel put it in
    their factum, the pressure proved too much.  A portion of the appellants affidavit puts the matter well:

My family, including my wife, wanted me to accept
    the Crowns offer.  My wife was still
    recovering from her surgery and could not cope alone with one infant and no
    income.  We all wanted to put my charge
    behind us.  We were all scared of the
    murder charge.  My lawyer told me that we
    did not have any way to challenge the testimony of Dr. Smith.  So I agreed, after much discussion with my
    family, to plead guilty as I did.  It was
    the hardest decision I ever had to make.  I do not want my guilty plea to ever be interpreted to mean that I did
    anything to harm
Gaurov
.  I did not.  My wife knows this too.

[38]

To hold the appellant to his guilty plea in these
    circumstances and given the fresh expert evidence, would constitute a
    miscarriage of justice.

DISPOSITION

[39]

Accordingly, the fresh evidence is admitted, the guilty
    plea is set aside, the conviction is quashed and an acquittal entered.  We wish to thank counsel, Mr.
Lockyer
, Ms. Craig and Ms. Roberts for their extremely
    valuable assistance in resolving this very difficult case.

Signed:           M.
    Rosenberg J.A.

Armstrong
    J.A.

Paul
    S. Rouleau J.A.

RELEASED:  MR
    FEBRUARY 10, 2011