Author: Sarah Harland-Logan

Introduction

Dinesh Kumar immigrated to Canada from India with his wife, Veena, and their son, Saurob, in 1991. Their second child, also a son, was born on February 11, 1992. They named him Gaurov. Unfortunately, Veena had a seizure on the day of Gaurov’s birth and was diagnosed with a brain tumour. She had to stay in hospital for a month, but the tumour was successfully removed, and she returned home to her family on March 3. The family would only be able to spend a few weeks together before tragedy struck again.[1]

In the early morning hours of March 18, 1992, Gaurov woke up crying. Dinesh fed his son milk from a bottle, burped him, and put him back in his crib. At 12:30 a.m., Gaurov woke up again, this time with a scream. Horrified, Dinesh saw that his son had stopped breathing and was turning blue. He told Veena that something was wrong, and performed CPR, to no effect. Dinesh and Veena – recent immigrants who were not yet fluent in English – were unfamiliar with the 911 system, so Dinesh phoned his brother-in-law to ask for help. His brother-in-law told him to call 911. Both Dinesh and Veena spoke to the 911 operator, who sent paramedics to their apartment.[2]

The paramedics rushed Gaurov to the hospital, but it was too late: he had suffered irreversible brain damage and had to be placed on life support. Dinesh would later recall seeing his son “in bed, breathing and alive. For me as his father, I could not believe he was really dead.”[3] Tragically, Gaurov continued to show no brain activity, and on March 20, 1992, he passed away.[4]

Dinesh and Veena’s tragedy was made still worse by the fact that coincidentally, Saurob had also suffered an episode of turning blue when he was an infant – although thankfully, Dinesh had been able to revive him with mouth-to-mouth resuscitation. He mentioned this incident while in the hospital with Gaurov. Children’s Aid, fearing that Dinesh had caused these incidents, took Saurob away to stay with Veena’s brother, just as Gaurov’s life support was being removed. At first, neither of Saurob’s parents could see him and he would not be returned to Veena for over three months.[5]

Gaurov’s Autopsy and Dinesh’s Arrest

Children’s Aid was not the only authority to suspect that Dinesh had played a role in Gaurov’s death. The day after Gaurov passed away, his autopsy was performed by the now disgraced ex-pathologist Charles Smith, who enjoyed a stellar reputation at the time. Smith concluded that Gaurov’s injuries were consistent with Shaken Baby Syndrome, meaning that Dinesh had caused his son’s death by violently shaking him.[6]

On June 26, 1992, Dinesh Kumar was arrested and charged with the second degree murder of his son. He later described his arrest as “a great shock”: “I was confused, frightened, humiliated and ashamed before my family and my community.”[7]

Dinesh’s Guilty Plea

Dinesh knew that he had done nothing to harm his son. However, he also knew that if convicted, he could face a lengthy prison term. Moreover, the prosecution would call Smith as their star witness, and Dinesh’s lawyer, Mr. David Gorrell, had informed him that Smith was seen as “a God” in the courtroom.[8] If Dinesh were found guilty and imprisoned, he would be abandoning his wife and remaining son, who depended on him for financial and personal support, especially since Veena had not yet recovered from her surgery. On top of everything else, he might be deported.[9]

However, Dinesh had another option. The Crown offered him a plea bargain that would change his situation completely. If he pled guilty to criminal negligence causing death, then he would only spend 90 days in jail, to be served on weekends, and the police would not report his case to immigration officials. Instead of his family being torn apart, Dinesh would be allowed to live with Veena and Saurob. Both his lawyer and his wife encouraged him to take the deal so that the family could try to move on with their lives.[10]

As Dinesh described it, “We were all scared of the murder charge. My lawyer told me that we did not have any way to challenge the testimony of Dr. Smith. So I agreed, after much discussion with my family, to plead guilty…. It was the hardest decision I ever had to make. I do not want my guilty plea to ever be interpreted to mean that I did anything to harm Gaurov. I did not. My wife knows this too.”[11]

On December 3, 1992, Dinesh pled guilty to criminal negligence causing his son’s death. He was sentenced to 90 days imprisonment and two years probation. After his conviction, Dinesh’s life eventually “returned to normal,” but he never lost his “sense of shame that … [he] had had to admit to causing Gaurov’s death,” despite knowing that he was innocent.[12]

Dinesh’s Case and the Goudge Inquiry

For the next decade and a half, Dinesh tried to put the past behind him, although he still thought of Gaurov every day.[13] Meanwhile, Charles Smith’s unimpeachable reputation had started crashing down. 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.[14]

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.[15] One of these cases was Gaurov’s. This inquiry, led by Commissioner Stephen Goudge, resulted in the publication of the Inquiry into Pediatric Forensic Pathology in Ontario (see http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html). When this report was released in April 2007, it identified Gaurov’s case as one of twenty in which the experts who had reviewed Smith’s work had serious disagreements with his findings.[16]

Dinesh’s Acquittal

On May 28, 2007, AIDWYC Senior Counsel James Lockyer visited Dinesh, and they agreed to try to reopen his case. In light of the Goudge Inquiry’s finding, the Crown agreed with AIDWYC that the case should be reopened and that Dinesh should be acquitted.[17] Five experts testified before the Ontario Court of Appeal, all of whom agreed that Gaurov’s cause of death was undetermined, rather than due to being shaken. In fact, several experts noted that the diagnosis of Shaken Baby Syndrome had become much more controversial since Dinesh’s conviction in 1992, and that there was no longer any consensus in the medical community as to whether this condition even existed. The experts concluded that there was no evidence suggesting that Dinesh had harmed his baby. One possibility is that Gaurov suffered a fatal hemorrhage caused by a head injury that he sustained during his birth.[18]

On January 20, 2011, the Ontario Court of Appeal set aside Dinesh’s guilty plea and entered an acquittal. One of the judges, Justice Rosenberg, commented on “the terrible toll this case has taken on you and your family over these last 20 years.” Outside the courthouse, Dinesh showed reporters a photo of Gaurov that he always carries with him, and said, “This will be with me until the day I die.”[19]

Causes of Dinesh’s Wrongful Conviction

The main reason for Dinesh’s wrongful conviction was Charles Smith’s incorrect conclusion that Dinesh had shaken his son to death – an opinion that no one was willing to challenge. The results of the Goudge Inquiry definitively destroyed Smith’s once-stellar reputation. This comprehensive report found that Smith had no training in forensic pathology (his own field was paediatric pathology), which led to many horrific misdiagnoses that put many innocent people in prison.[20]Moreover, Smith was a terrible expert witness who often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.”[21] Smith was eventually stripped of his medical license.[22]

Unlike his opinion in many other cases, Smith’s theory that Gaurov had died at the hands of his father was not unreasonable at the time. In fact, James Lockyer explained that he would “find it hard to be too critical of … [Smith] on this one, just because there were lots of pathologists who would have said the same thing back in 1992.”[23] Fortunately, however, the Goudge Inquiry caught this error, in addition to the many egregious errors that Smith made in other cases (see, for, example, the cases of Bill Mullins-Johnson, Tammy Marquardt and Sherry Sherret-Robinson).

Another cause of Dinesh’s wrongful conviction was that he chose to plead guilty even though he knew that he had done nothing wrong. Although plea bargains are an important part of the justice system – they allow cases to move through the courts efficiently and often provide a good resolution for everyone – it is important that prosecutors only make plea agreements that are fair to the accused. The current version of the Crown Policy Manual followed by Ontario prosecutors specifies that “Crown counsel must not accept a guilty plea to a charge knowing that the accused is innocent,” or when part of the alleged offence could never be proven in court.[24]

That said, there is no suggestion that the prosecutor who offered Dinesh his plea deal acted improperly. At the time everyone believed that Charles Smith’s opinion was reliable.

Wounds that AIDWYC Cannot Heal

Dinesh’s community turned on him when he pled guilty to causing his son’s death. Many people avoided him, and he recalls people pointing to him and saying, “That is the guy who killed his own son.”[25] Dinesh’s name has now been cleared, but he cannot go back in time and erase the stigma he suffered; nor can he change his and Veena’s decision not to have another child. As he explained when his case was reopened, “After what happened to me, Veena and I decided we could not dare to have another baby in case it was taken away from us. So Saurob is an only child.”[26]


[1] “Affidavit of Dinesh Kumar” (filed in the Ontario Court of Appeal), accessed at http://smithforensic.blogspot.ca/2008/05/part-five-dinesh-kumars-affidavit-heart.html[“Affidavit”]; Tracey Tyler, The Star: “A Father’s 20-Year Battle for Exoneration.” January 20, 2011, http://www.thestar.com/news/gta/2011/01/20/a_fathers_20year_battle_for_exoneration.html [“20-Year Battle”].

[2] “Affidavit,” supra note 1; R v Kumar, 2011 ONCA 120 at paras 1 and 3, CCC (3d) 369 [Kumar].

[3] “Affidavit,” supra note 1.

[4] Kumar, supra note 2 at para 5.

[5] Ibid; “Affidavit,” supra note 1.

[6] Kumar, supra note 2 at para 6.

[7] Ibid at para 8; “Affidavit,” supra note 1.

[8] “Affidavit,” supra note 1.

[9] Ibid; Kumar, supra note 2 at paras 10, 13.

[10] Kumar, supra note 2 at paras 9, 37; “Affidavit,” supra note 1; “20-Year Battle,” supra note 1.

[11] “Affidavit,” supra note 1 (cited in Kumar, supra note 2 at para 37).

[12] Kumar, supra note 2 at para 37; “Affidavit,” supra note 1.

[13] “20-Year Battle,” supra note 1.

[14] Inquiry into Pediatric Forensic Pathology in Ontario Report (the Honorable Stephen T. Goudge, Commissioner), Volume 2 Systemic Review (2008), online: http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/index.html (p32).

[15] The Honourable Stephen T. Goudge, Commissioner. “Volume 2: Systematic Review,” Inquiry into Pediatric Forensic Pathology in Ontario. September 30, 2008, available at http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html (p 68).

[16] Kumar, supra note 2 at para 15.

[17] Ibid at para 32; “Affidavit,” supra note 1.

[18] Kumar, supra note 2 at paras 19, 21, 24-31.

[19] Ibid at para 1; “20-Year Battle,” supra note 1.

[20] Ibid at p 41.

[21] Ibid.

[22] CTV.ca News Staff, “Disgraced Pathologist Stripped of Medical Licence.” February 1, 2011, http://www.ctvnews.ca/disgraced-pathologist-stripped-of-medical-licence-1.602739.

[23] The Canadian Press: “Man Acquitted in Baby Son’s Death.” January 20, 2011, accessed at http://www.theglobeandmail.com/news/national/man-acquitted-in-baby-sons-death/article576987/ [“Acquitted in Baby Son’s Death”].

[24] “Resolution Discussions,” March 21, 2005, Crown Policy Manual. Available at: http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/ResolutionDiscussions.pdf

[25] “Acquitted in Baby Son’s Death,” supra note 23; Linda Nguyen, National Post: “Ontario Man Acquitted in Death of Infant Son.” January 20, 2011, http://news.nationalpost.com/2011/01/20/ontario-man-acquitted-in-death-of-infant-son/.

[26] “Affidavit,” supra note 1.