Court lets dad appeal Dr. Smith baby case

Judge waives deadline to challenge conviction
Jan 07, 2009 04:30 AM
Tracey Tyler

The Ontario Court of Appeal is giving Richard Brant a second chance to prove he didn't kill his 2-month-old baby, contrary to highly damaging findings made by disgraced pathologist Dr. Charles Smith.

Brant's deadline for appealing his 1995 conviction expired more than 13 years ago, but the court yesterday agreed to an extension. Lawyers for Brant, 36, have until Friday to file documents formally setting the appeal process in motion.

"The applicant (Brant) has explained the delay and there is obvious merit to the appeal," Justice Marc Rosenberg said in a written endorsement yesterday, after hearing submissions from Brant's lawyer, James Lockyer, and Crown counsel Alison Wheeler.

Wheeler did not oppose Lockyer's request for a time extension. Brant's case was one of nearly two dozen that led to a recent public inquiry into Ontario's pediatric forensic pathology system.

A team of international forensic experts found Smith, described by Brant's trial lawyer as "the king" of child death investigations, made mistake after mistake and reached findings not supported by evidence.

In Brant's case, Smith concluded 2-month-old Dustin Brant's death in Nov. 1992 was a homicide from blunt-force trauma, likely the result of being shaken. In his findings, he contradicted a neuropathologist who performed an autopsy and found Dustin died of respiratory failure and pneumonia.

In an affidavit filed with the court, Brant, who had originally been charged with manslaughter, said he agreed to accept an offer from the Crown and plead guilty to aggravated assault because he felt he stood no chance against Smith, then a powerful and persuasive witness.

Brant served six months in jail.

Speaking with reporters outside court yesterday, Lockyer said his client and many other parents who were convicted of killing their children on the basis of Smith's testimony share another common denominator. Most, like Brant, had little money.

To this day, Brant, who now lives in New Brunswick, doesn't have the money to fight to clear his name.

As a result, Rosenberg ruled yesterday that Lockyer will have his legal fees covered by the province, as allowed by the Criminal Code, at a rate of $225 an hour. His law student will get $35 an hour.