Judge reopens 16-year-old case into death of man's son
A Toronto man's chances of being exonerated in the 1992 death of his
five-week-old baby appeared to soar yesterday, after an Ontario Court of
Appeal judge reopened the 16-year-old case and offered him some hopeful
Mr. Justice Marc Rosenberg said he found it "very understandable"
that Dinesh Kumar accepted a plea bargain from the Crown in 1993, which
resulted in him getting a 90-day sentence for criminal negligence causing
Judge Rosenberg said the plea offer was "exceedingly lenient,"
considering Mr. Kumar faced a term of life imprisonment if convicted for the
murder of his child, Gaurov.
"It is manifestly in the interests of justice that an extension of time
be granted in these unusual circumstances, notwithstanding the long passage
of time," Judge Rosenberg said.
In his application, Mr. Kumar contends that he was effectively forced to
plead guilty, rather than face trial testimony from the country's leading
forensic pathologist - Charles Smith.
The now-discredited Dr. Smith was to testify for the Crown that Gaurov was a
victim of shaken baby syndrome - a popular diagnosis at the time - which is now
in serious question in the forensic pathology community.
Referring to the controversy, Judge Rosenberg said yesterday: "New evidence
has now come to light casting serious doubt on the validity of the findings of
In another significant move yesterday, Crown counsel Gillian Roberts told the
court she did not oppose reopening Mr. Kumar's appeal - a concession that
indicates the Crown sees merit in his appeal.
After the brief hearing, Mr. Kumar - who was accompanied by his wife, Veena,
his son, Saurob, and several relatives - expressed delight at the outcome. "This
is a great day now," he said in an interview. "I am happy. It is a very good
thing for us."
Defence counsel James Lockyer said he will file Mr. Kumar's appeal
immediately. "I think that the way Justice Rosenberg spoke was very
encouraging," he said. "The next step is to sit down with the Crown and sort out
where we go from here."
Mr. Lockyer said he is hoping the Crown will simply agree to Mr. Kumar being
exonerated, without both sides having to go to the trouble and expense of
seeking expert opinions from forensic pathologists abroad.
"I would like Mr. Kumar's name to be cleared as soon as possible," he said.
Five weeks after his birth, Gaurov screamed in his sleep one night. Mr. Kumar
told police that he rushed over to the child's crib to find him gasping and
looking bluish. Doctors determined later that night that Gaurov was brain-dead.
A day later, on March 20, 1992, he was removed from life support.
On June 26, 1992, Mr. Kumar was arrested for second-degree murder.
The real cause of Gaurov's death might never be determined. In a brief to the
court, Mr. Lockyer and co-counsel Alison Craig stated that Dr. Smith should have
realized that shaken baby syndrome was not even a legitimate diagnosis at the
time, since one of three indicators that must be present for such a diagnosis -
retinal hemorrhages - was absent.