Father’s conviction should be quashed, Crown says

Published On Fri Jan 07 2011

Tracey Tyler Legal Affairs Reporter

From the time he set foot in Canada 20 years ago, Dinesh Kumar’s life has been a near-continuous series of ordeals.

His wife battled a brain tumour, his five-week-old son Gaurov died inexplicably and Kumar suddenly found himself charged with murder, thanks to a medical opinion from now-discredited pathologist Charles Smith that the child died from “shaken baby syndrome.”

Now Kumar, a 44-year-old immigrant from the Punjab, has received some good and bad news.

Ontario’s attorney general is conceding his conviction for criminal negligence in connection with Gaurov’s death should be quashed, which is expected to happen Jan. 17 when the case comes before the Ontario Court of Appeal.

But the Crown says it is not conceding that Kumar is “factually innocent.”

Although there is now evidence Gaurov did not die from being shaken, his death remains unexplained, Crown counsel Gillian Roberts says in a written argument, released to the media by the court on Friday.

She says the evidence in the case does not prove, as it did in the case of William Mullins-Johnson, who was wrongly convicted of murdering his niece on the basis of Smith’s testimony, that no crime was ever committed.

The Crown also says it “does not accept” criticism that shaken baby syndrome is a discredited theory.

The statement could be significant because, two years ago, the Ontario government launched a review of nearly 150 cases dating back to 1986, in which child deaths had been attributed to the syndrome.

It remains to be seen whether the court will, as James Lockyer, Kumar’s lawyer, urges in material filed with the court, “say whatever it considers appropriate to help him clear his name.”

In his written argument, Lockyer says while shaken baby syndrome was in vogue twenty years ago as an explanation for sudden child deaths, biomechanical engineering has since challenged the “science” of the syndrome and shown that shaking a baby to death is unlikely.

Engineering has shown such shaking would create neck and spinal damage and leave visible finger marks, Lockyer says.

Kumar, originally charged with second-degree murder, said he accepted a plea bargain to a lesser charge after being told by his lawyer that Smith was “like a God” and there was no way to challenge his testimony.

“We were all scared of the murder charge,” he said in an affidavit filed with the court. “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.”