On September 22, 1970, Maxine Ditchfield, a 28-year-old dog groomer and mother of three, succumbed to fatal brain injuries. Her common-law husband, John (Jack) Salmon, was charged with her murder.
John, a welder, had met Maxine in 1967. The two began dating in 1970; they had recently moved in together.
Three days prior to Maxine’s death, the family visited friends of theirs, Don and Mary Claydon. John and Maxine dropped off the children and went to a local hotel, where they drank beer together. Later that night, they returned to the Claydons’ home and continued to drink. At some point, Maxine slipped off her chair at the kitchen table and fell to the floor; John helped her back into her seat, and the two then agreed that they should go home. Maxine fell asleep in the car on the way back, and John left the front door unlocked so that she could come inside when she awoke. John put the kids to bed and went to sleep himself.
When John awoke the next morning, Maxine was in the children’s bedroom. He helped her to the washroom. John noticed that Maxine’s movements were weak and clumsy, and that she had a black eye. John asked her what had happened, but she did not know. As John was leaving the washroom, Maxine fell and struck her head on either the basin or the bathtub. He helped Maxine up and asked what was wrong; she responded that she was sick. John assisted Maxine to get back in bed; he noticed that she also had bruising on her arm.
Throughout that day, Maxine was very sick. She stayed in bed and fell several more times while attempting to get up or use the washroom. The next day, Maxine seemed to be doing better, so John went out to run errands. When he returned and checked on her, however, he was not able to wake her up. John phoned Maxine’s doctor and asked him to make a house call as soon as possible. When the doctor arrived, he found Maxine unconscious and directed John to call an ambulance. Maxine was taken to hospital, where she died the following morning.
John’s Trial and Appeal
At trial, John maintained – as he has always done – that he loved Maxine and had not harmed her in any way. The Crown’s position, however, was that John had assaulted Maxine, causing her fatal head injuries (either directly or as a result of a subsequent fall). The Crown relied on the testimony of an expert witness, pathologist Dr. Dietrich, who had performed Maxine’s autopsy. He testified that Maxine had died because of extensive brain damage caused by “a terrific blow” to her head, “delivered with extreme force.” Dr. Dietrich testified that it was unlikely that Maxine could have sustained these injuries by falling in the bathroom or on the stairs leading up to the front door. The jury also saw a series of photographs showing Maxine’s heavily bruised face that seemed to support Dr. Dietrich’s opinion that she had been brutally beaten.
In addition, Maxine’s eight-year-old son testified that he had woken up to John and Maxine fighting, and that he had looked outside and observed John hitting Maxine, causing her to fall to the ground. However, Maxine’s son had not said anything about this incident in his police interview or during the preliminary hearing that preceded the trial, and no one else recalled this event. Michael also testified that he had seen John hit Maxine in the kitchen, again causing her to fall; but other evidence (including testimony and photographs) demonstrated that Michael could not have seen this area of the kitchen from the chesterfield where he was sleeping.
On March 5, 1971, the jury returned a guilty verdict, and John was convicted of manslaughter. He was sentenced to ten years’ imprisonment.
John appealed his conviction to the Ontario Court of Appeal. On November 10, 1972, his appeal was dismissed; John remained in prison and continued to serve his sentence. He was released on parole on July 26, 1974, having spent almost four years behind bars.
Over two decades after his wrongful conviction, John approached Toronto criminal defence lawyer and Innocence Canada (formerly AIDWYC) Senior Counsel James Lockyer for help. He had heard about Mr. Lockyer’s representation of Innocence Canada exoneree Steven Truscott, who was also wrongfully convicted of homicide several decades before his eventual exoneration. In John’s words, Mr. Truscott had “fought for years and years and years and years and years and it looked like he was going nowhere,” and his example inspired John to continue his own fight to clear his name.
Mr. Lockyer retained two forensic pathologists (Dr. Markesteyn and Dr. Shkrum) and a forensic neuropathologist (Dr. Ramsay) to review the medical evidence pertaining to Maxine’s death. Later, the Crown retained its own expert (Dr. Halliday, a clinical neuropathologist). All four experts concluded that John did not kill Maxine. Rather, she died because of brain damage sustained in a series of falls in the bathroom, the bedroom, and/or on the steps. (Specifically, an injury to one of Maxine’s cerebral arteries caused a blood clot to form, resulting in a fatal stroke.)
The experts agreed that the locations of Maxine’s brain injuries were not consistent with being struck. If John had hit Maxine, there would have been damage to the part of her brain closest to the site of impact (a “coup contusion”). Maxine did not sustain any such injuries. Instead, her brain injuries were some distance away from the site of impact, indicating that the damage was caused by a fall (a “contrecoup contusion”).
Moreover, the experts disagreed with Dr. Dietrich that Maxine’s injuries resulted from a very forceful impact. Instead, they found that the damage resulted from the “minimal or moderate” impact of Maxine’s head against the surfaces that she struck when falling. Further, the experts concluded that the injuries to Maxine’s nose, jaw and chin depicted in the photographs shown to the jury were caused when hospital staff put a face mask in place to try to help her breathe. In short, the picture that had been painted of a brutal assault had no basis in reality at all. Maxine’s death was tragic, but it was not a crime.
Considering this new evidence, Mr. Lockyer with the help of Toronto Lawyer Marie Henein, applied to the Supreme Court of Canada for an order requiring that the Ontario Court of Appeal reconsider his case. The Supreme Court granted the application on October 25, 2012.
On Monday, June 22, 2015, the Ontario Court of Appeal admitted the fresh evidence absolving John, quashed his manslaughter conviction, and entered an acquittal. At long last, John had succeeded in clearing his name.
Causes of John’s Wrongful Conviction: Flawed Pathology Evidence
The flawed pathology evidence presented at John’s trial was the preeminent cause of his wrongful conviction. Indeed, Clay Powell, Q.C., the prosecutor at John’s trial, told the Star that had the new pathology evidence been available to him in 1971, “this case would never have gone to trial.” Mr. Powell added that he had always had a “nagging doubt” as to John’s guilt, and offered him an apology if he had “failed in [his] … role as Crown counsel.”
As Justice Goudge of the Ontario Court of Appeal stated in the Inquiry Into Pediatric Forensic Pathology in Ontario (which arose due to the many wrongful convictions caused by now-disgraced pathologist Charles Smith – see, e.g., Richard Brant, Dinesh Kumar, Sherry Sherrett-Robinson, Tammy Marquardt, and William Mullins-Johnson):
The reliability of forensic pathology opinions matters a great deal to the criminal justice system. In cases in which there are important issues of pathology … flawed pathology can lead to tragic outcomes. […] Flawed pathology can result in a parent, family member, or caregiver being wrongly entangled in the criminal justice system, and wrongfully convicted and incarcerated…
Wrongful convictions such as John’s are a sobering reminder that although the forensic sciences provide powerful and productive tools for both Crown and defence, these disciplines are still evolving. As with other aspects of the court process, even the best available forensic evidence is not infallible.
In addition to this general difficulty, Dr. Dietrich’s background and testimony style likely played a role in John’s wrongful conviction. Dr. Dietrich was a clinical pathologist, not a forensic pathologist: he was trained to determine causes of disease in living patients, not to identify causes of death through post-mortem examination and apply these findings in the context of criminal proceedings. As Justice Goudge observed, this lack of appropriate training reflects a systemic problem:
[M]ost of the work of forensic pathology in Ontario has not been carried out by fully qualified, full-time forensic pathologists. Rather, it has been left in large part to anatomical pathologists who are self-taught in forensic matters, have little or no forensic training, and, at best, work only as part-time forensic pathologists. […] The evidence I heard has proven the obvious – there is greater potential for misdiagnoses and other serious mistakes when those working in forensic pathology lack formal training and institutional support. There is broad agreement that this situation is untenable.
Attempts to prevent future wrongful convictions like John’s must therefore include systemic reform of this pervasive – and potentially catastrophic – problem.
Moreover, Dr. Dietrich may have used an inappropriate investigative approach that Justice Goudge described as “thinking dirty.” In other words, rather than approaching the evidence with an open mind – “without preconceptions or presumptions about abuse” – Dr. Dietrich may have begun his investigation with the preconception that Maxine’s death was a homicide. This stance is not compatible with an evidence-based search for truth, and can contribute to wrongful convictions, as John’s case demonstrates.
Causes of John’s Wrongful Conviction: Unreliable Eyewitness Testimony
Another factor that may have led to John’s wrongful conviction was the testimony of Maxine’s son, who claimed that he had seen John hit his mother on two occasions. Since the new pathology evidence demonstrates that Maxine’s death resulted from a series of falls and not from an assault, in hindsight it is clear that Maxine’s son was mistaken.
While it might seem strange that an eyewitness could be wrong about such an important event, mistaken eyewitness testimony is actually an important factor in many wrongful convictions. Most commonly, mistaken eyewitness testimony takes the form of an incorrect identification of the suspect. In fact, of the Innocence Project’s first 225 DNA exonerations in the US, “77% of the convictions had been based on mistaken eyewitness identification.”
Wounds that Innocence Canada Cannot Heal
Today, John is a married grandfather in his seventies. Notwithstanding the distance that now separates him from Maxine, John loved her and still has “a soft spot in … [his] heart for her.”
In addition to the pain of losing his partner, John has been burdened for decades with the far-reaching consequences of his wrongful conviction. In addition to the years that he spent behind bars, John has lost countless opportunities in many areas of his life. Prior to his exoneration, John described his pervasive experience of stigma as follows:
I carry the shame of a crime I did not commit … every day. It has limited my work and career advancement opportunities, caused … rejection from financial institutions, resulted in hardships for members of my family, and … limited my participation in past-times I enjoy. I have also had difficulty making friends … as a result of this conviction. I have encountered restrictions in travelling…. I live my life feeling that people shun me and avoid me.
John’s good name has now been restored, but the decades of lost chances can never be redeemed.
 “Appellant’s Factum,” R v Salmon, Ontario Court of Appeal #C60282 at paras 1-2 [Appellant’s Factum]; Tracey Tyler, “‘I wasn’t guilty’: New evidence suggests man didn’t kill wife in 1970”, The Star (4 July 2011), online: http://www.thestar.com/news/crime/2011/07/04/i_wasnt_guilty_new_evidence_suggests_man_didnt_kill_wife_in_1970.html [Tyler]; Kirk Makin, “Man hopes to clear name 40 years after conviction in wife’s death”, The Globe and Mail (6 September 2012), online: http://www.theglobeandmail.com/news/national/man-hopes-to-clear-name-40-years-after-conviction-in-wifes-death/article585511/ [Makin].
 Appellant’s Factum, supra note 1 at paras 9-10.
 Ibid at paras 12-17; Tyler, supra note 1.
 Appellant’s Factum, supra note 1 at para 18.
 Ibid at paras 3, 19-23, 72.
 Ibid at paras 3, 5, 24-34, 37, 42, 44, 83.
 Ibid at paras 13, 15.
 Ibid at paras 3, 36.
 Ibid at paras 4-5, 37 (citing R v Salmon (1973), 10 CCC (2d) 84 (ONCA)).
 Ibid at para 5; Tyler, supra note 1.
 Appellant’s Factum, supra note 1 at paras 3, 5, 42-63.
 Ibid at paras 5, 42-63.
 Ibid at paras 43, 48, 55, 60.
 Ibid at paras 1, 8.
 Judgment of Ontario Court of Appeal, R v Salmon, #C60282, 22 June 2015 (official citation to follow).
 Tracy, supra note 1.
 Appellant’s Factum, supra note 1 at para 41, citing The Honourable Stephen T. Goudge, Commissioner, Inquiry Into Pediatric Forensic Pathology in Ontario, Vol 1, p 10 [Goudge].
 Appellant’s Factum, supra note 1 at paras 64-64; Goudge, supra note 17, Vol III, p 289.
 Appellant’s Factum, supra note 1 at paras 68, 70, citing Goudge, supra note 17, Executive Summary, p 43.
 Appellant’s Factum, supra note 1 at para 15.
 Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 Journal of Contemporary Criminal Justice 183 at 183, 185; R v Hanemaayer, supra note 1 at para 29.
 Tyler, supra note 1; Peter Small, “Supreme Court orders 41-year-old manslaughter conviction reopened”, The Star (26 October 2012), online: http://www.thestar.com/news/crime/2012/10/26/supreme_court_orders_41yearold_manslaughter_conviction_reopened.html.
 Appellant’s Factum, supra note 1 at para 83.