The cases reviewed by the chief coroner involving prosecutions have not been named and are not part of the public inquiry, but are being handled separately by the Ministry of the Attorney General. But the stories of several of those convicted in part due to Smith’s evidence came out in the days and weeks following the release of the report. Shortly before the inquiry was called, Bryant announced that Crown counsel would be consenting to a defence bail application to the court of appeal in the case of Marco Trotta, convicted of second-degree murder in 1998 in the death of his eight-month-old son. The case is heading to the Supreme Court of Canada later this year. Bryant also indicated consent to an application for an extension of time for Sherry Sherrett, convicted in the death of her infant son, to appeal her conviction. In March, the Ontario Court of Appeal ruled that Louise Reynolds of Kingston, Ont., could take a suit against Smith to court after she was wrongly charged in the death of her daughter in 1997 and spent two years in prison on the basis of Smith’s findings regarding the cause of death.

Most recently, in July, federal Minister of Justice Rob Nicholson referred the murder conviction of William Mullins-Johnson to the Ontario Court of Appeal, after saying he was satisfied there was a reasonable basis to conclude that a miscarriage of justice likely occurred in Mullins-Johnson’s 1994 first-degree murder conviction in the death of his four-year-old niece.

AIDWYC says during trial, Smith’s opinion that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes, was essential to the jury’s verdict of first-degree murder.  A misplacing of crucial evidence in the case prompted the audit of tissue samples from autopsies performed at the Hospital for Sick Children before the samples were found on Smith’s desk. In September 2005, Mullins-Johnson’s counsel applied to the minister of justice for a review of the murder conviction, after which he was granted bail pending the minister’s decision.

Cindy Wasser, a criminal lawyer with Toronto firm Wasser McArthur LLP, says, “I think what we’ll find in this case is that this was pretty specific to what happened in that office surrounding him, that there was no one really with a knowledge base that could watch and supervise and question.” Going forward, she says, people will have their eyes open and ask about the qualifications of the expert, making sure that the post-mortem report has been properly reviewed by a committee of peers. Defence counsel in cases where there is an odd cause of death should have their own expert review it. She adds, however, that she is not sure if people are going to become more aware from the inquiry if they aren’t already aware.

But Vertes says while expert evidence can be questioned in trial, it can often be difficult for the defence to find the resources to challenge this type of evidence because of the cost. “I think this is one of the real key areas where the defence is at a distinct disadvantage,” he says.

One change already underway is to create a list of forensic pathologists willing to do defence work, says Wasser, and there will be more over time. “People should be aware by now that you have to have your own expert review any kind of Crown expert material if there’s really an argument,” she says. The Ontario Coroner’s Office says it has learned lessons as a result of the review and has already made some changes, such as having two review committees focusing exclusively on complex pediatric deaths and forensic autopsies on criminally suspicious cases, homicides, and cases going to inquest now undergoing a standardized audit process.

A two-day course has also been developed for pathologists who provide expert testimony in court. The coroner’s office says these steps have been and will continue to be shared with other jurisdictions through educational courses and presentations. Wasser adds that pathologists will also hopefully be getting their own forensic pathology program in Canada. However, she says the profession has had its eyes opened, but it may not just be because of Smith, but also other experts in the past. “That then begs the question: if this has happened before, and it happened again, why does it keep happening . . . and at what point are we going to be safe to say it won’t happen again?”