On November 17, 1992, nineteen-year-old Richard Brant, of Belleville, Ontario, was out for a walk with Dustin, his infant son, when he suddenly found the baby was motionless in the carriage, with red foam around his nose. He immediately rushed Dustin to a nearby restaurant and called 911. Dustin was briefly revived at the hospital, but passed away on November 18, only nine weeks old.
A nearby police officer had happened to observe Richard’s initial, horrified reaction when he saw that Dustin was not moving. This officer thought that Richard was indeed both surprised and upset.
Dustin’s autopsy was performed at the Kingston General Hospital, by Dr. Sukrita Nag, a Professor of Neuropathology, who concluded that Dustin had died due to complications from pneumonia, which made sense to Richard, since Dustin had been suffering from an upper respiratory infection shortly before his death. However, the police investigators believed that Richard had killed his son, despite the complete absence of any evidence to support this theory. They requested a second opinion from the now infamous Charles Smith, then regarded as Ontario’s leading pediatric forensic pathologist.
Smith reached a very different conclusion from that of Dr. Nag. In his report of April 15, 1993, Smith stated that Dustin exhibited the classic symptoms of Shaken Baby Syndrome, and that Richard’s shaking his son had led to Dustin’s death. Smith arrogantly claimed that Dr. Nag’s autopsy report should be “filed in the garbage can.”
Smith felt comfortable submitting this report even though he had not examined Dustin’s brain – which is absolutely crucial to making this diagnosis – since it had already decomposed owing to the fact morgue staff had accidentally left it in a container of water.
On April 22, 1993, Richard was arrested and charged with manslaughter.
Richard knew that he was innocent; but he also knew that he would face a stiff sentence if he were found guilty of manslaughter. Charles Smith would be the prosecution’s star witness, and Richard’s lawyer had told him that Smith was viewed as “the king” of his field. His compelling testimony could easily lead to a conviction, and Richard could spend up to fifteen years in jail.
However, Richard had another option. After his preliminary hearing, the Crown prosecutor offered him a plea bargain: plead guilty to aggravated assault and spend only six to nine months in jail. Richard’s lawyer urged him to accept this offer.
On April 21, 1995, Richard pled guilty to aggravated assault. He was sentenced to six months in prison. After his release, Richard was ostracized by members of his community, who believed that he had killed his newborn baby.
Pleading guilty to a crime he did not commit was the hardest decision of Richard’s life. For over a decade after his conviction, Richard tried to put this horrific chapter behind him, unaware that Charles Smith’s reputation had started to crumble. AIDWYC’s work on the Bill Mullins-Johnson case had raised serious doubts about Smith’s findings, and AIDWYC was growing suspicious of Smith’s conclusions in other cases as well. In April 2005, AIDWYC wrote to Dr. Barry McLellan – then the Chief Coroner for Ontario – and Michael Bryant – then the Attorney General – urging a full public inquiry into Smith’s work.
On June 7, 2005, Dr. McLellan announced in a press release that a formal review would be conducted into Smith’s work on 45 cases involving suspicious deaths of children, including Dustin’s. This inquiry, led by Justice Stephen Goudge, resulted in the publication of the Inquiry into Pediatric Forensic Pathology in Ontario.
The reviewer assigned to Dustin’s case was a forensic neuropathologist, Dr. Whitwell. She and other experts concluded that there was no evidence to support Smith’s finding that Richard had hurt Dustin. She did note, however, that pneumonia might indeed have played a role, as Dr. Nag had originally found.
In May of 2007, AIDWYC lawyer James Lockyer informed Richard that Dustin’s case had been reviewed and that the experts agreed that there was no evidence suggesting that he had harmed his son.
The Ontario Court of Appeal granted Richard leave to reopen his case in January of 2009. Since it had become clear to everyone that Smith’s incorrect report had led to the conviction of an innocent man, Richard’s AIDWYC lawyers and Crown prosecutor Alison Wheeler jointly requested that the court acquit him.
On May 4, 2011, the Court of Appeal complied with this request, setting aside Richard’s guilty plea and entering an acquittal. 16 years after Richard’s conviction, the truth finally came out.
"He fought his heart out for me with skill and grace. And we won. I am so glad that I found him"