In a factum released yesterday, Gillian Roberts, writing for the Crown, asks the court to set aside the conviction of Tammy Marquardt, who spent 14 years in jail for killing her 2 1/2-year-old son, Kenneth Wynne. Smith, whom a public inquiry found had made repeated errors during his many years as Ontario's leading pediatric forensic pathologist, found Kenneth had died of asphyxiation at the hands of his mother.
In the factum, Roberts says evidence related to Sudden Unexplained Death in Epilepsy (SUDEP) should be admitted. "The fresh evidence in this case, trimmed down in scope to what is admissible in the context of SUDEP . . . should be admitted as it could reasonably be expected to have affected the verdict. In particular, Dr. Smith wrongly supported the theory of the Crown in this case that the appellant smothered Kenneth. At the same time, Dr. Smith’s errors precluded the defence from effectively arguing that Kenneth’s death could be classified as SUDEP. While this was unlikely in the particular circumstances of this case, it should have been left with the jury. As a result, the respondent joins the appellant in requesting that the conviction be set aside and a new trial ordered."
A rehearing in the case, R. v. Marquardt, is to take place before the Ontario Court of Appeal on Feb. 10. In the meantime, the college will begin proceedings to determine whether to revoke his licence today in Toronto.