Introduction: Joshua’s Death and Autopsy
On January 22, 1996, Sherry Sherrett-Robinson awoke to find her four-month-old son, Joshua, lying facedown in his playpen. Years later, she would write that “I will never forget the terror I felt when I reached down to pick him up and discovered that he was blue, and his little body was completely stiff.” Sherry called 911, sobbing. In the hospital emergency room, doctors were unable to revive Joshua; “eventually,” she wrote, “the doctors came and told me he had died and let me hold him to say goodbye.” All Sherry wanted to do was curl up in a hole beside him. Instead she sang him one last lullaby. Over a decade after Joshua’s death, Sherry found that “Even to this day, I cannot get that image out of my head.” When Sherry lost Joshua, she was only twenty years old.
Sherry knew that she had never hurt her son; she has always maintained that she did not harm him. However, Charles Smith, the now disgraced former pathologist who performed Joshua’s autopsy, took a very different view. Smith believed that Sherry had smothered Joshua to death. He claimed to have found several injuries on Joshua’s body – for example, swelling in Joshua’s brain and bleeding in his neck tissues – to support his conclusion.
As a result of these findings, police and Children’s Aid grew fearful for the safety of Sherry’s surviving son, eighteen-month-old Austin. On March 7, Austin was removed from her care. He was later put up for adoption, and Sherry was not allowed to have any contact with him. In less than two months, Sherry had lost both her sons.
On March 27, 1996, Sherry was arrested and charged with Joshua’s murder.
Sherry knew that she was innocent, but she also knew it was her words against the acclaimed Charles Smith, who would be the Crown’s star witness. Sherry’s lawyer did not believe that she could convince the court to believe her word over his. It looked as if Sherry would wind up spending many years in prison for a crime that she did not commit.
At the last moment before her trial began, the Crown prosecutor offered to withdraw the murder charge and proceed with a charge of infanticide instead. If convicted of infanticide, Sherry would face a drastically reduced prison term. In exchange, Sherry would have to agree not to argue against the Crown’s allegation that she had smothered Joshua. So, although she would officially be pleading not guilty to the new charge of infanticide, she would be agreeing with the Crown’s position that she had hurt her baby.
Despite Sherry knowing that she had not smothered Joshua, she felt that she had no choice but to accept this offer. She went to trial on the new charge of infanticide, and the Crown read out a list of agreed facts that included the untrue claim that she had smothered her son. The central supporting pillar of the Crown’s case was Charles Smith’s medical opinion that she was responsible for Joshua’s death.
Predictably, on June 2, 1999, Sherry was found guilty of infanticide. She was sentenced to one year in prison, where other inmates called her a “baby killer.” It seemed that this stigma would follow Sherry for the rest of her life.
Flawed Medical Evidence
Six years after Sherry’s conviction, Charles Smith’s vaunted reputation had started crashing down. Innocence Cnanada's (formerly AIDWYC) work on the Bill Mullins-Johnson case had raised serious doubts about Smith’s findings, and Innocence Canada was growing suspicious of Smith’s conclusions in other cases as well. In April 2005, Innocence Canada 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. This inquiry, led by Justice Stephen Goudge, resulted in the publication of the Inquiry into Pediatric Forensic Pathology in Ontario.
In January 2006, Sherry happened to read something online about this inquiry into Smith’s cases. She immediately contacted Innocence Canada, which advised her to get in touch with the Ontario Office of the Chief Coroner and request that her case be included in the investigation.
The results of this new investigation into Joshua’s death were both vindicating and alarming. The experts who reviewed Smith’s work found that his opinion was completely wrong. There was no evidence to support his finding that Joshua had been smothered to death. The reviewers found that rather than being murdered, Joshua had probably asphyxiated accidentally in the blankets and quilts that had been placed in his playpen. Sherry, who had always wondered if she had given Joshua too many blankets that night, would now have to live with the knowledge that this was probably true. While this innocent mistake tragically led to her beloved son’s death, the mistake was indeed just that: innocent.
Furthermore, the experts found that Smith had reached an incorrect conclusion by making a number of egregious errors in the autopsy process. Contrary to Smith’s opinion, there was no evidence of swelling in Joshua’s brain. Even more disturbing, the hemorrhages in Joshua’s neck tissue were actually caused by Smith’s procedures during the autopsy itself.
Moreover, the Goudge Inquiry found that Smith sometimes included “irrelevant or prejudicial information” in his autopsy reports, which may have affected his decision-making. For example, Smith wrote in Joshua’s final autopsy report that Sherry was married but was not officially living with her husband so that she could keep collecting welfare to help support herself and her two sons. Perhaps Smith was prejudiced against Sherry because he had learned this piece of “irrelevant social history,” which should have had nothing to do with Joshua’s autopsy results.
As Innocence Canada lawyer James Lockyer put it, the cumulative effect of these mistakes made for “a pretty classic Dr. Smith problem,” since it had become clear that Smith “misdiagnoses, over-diagnoses, and turns natural deaths into homicides.”
A Miscarriage of Justice
With Innocence Canada's assistance, Sherry applied to the Ontario Court of Appeal to have her conviction quashed in light of this new evidence proving that she had not caused Joshua’s death. The lawyer representing the Crown agreed with Innocence Canada that Sherry should be acquitted. He stated that Sherry would never have been prosecuted if the new expert evidence had been available back in 1996.
On December 7, 2009, the Ontario Court of Appeal overturned Sherry’s conviction and entered an acquittal. In its judgment, the Court commented that “the tragedy of four-month-old Joshua’s death is compounded by the fact … [that his] mother was wrongfully convicted of infanticide, served a one-year jail sentence and lost the custody of her other child.” The Court concluded that Sherry had suffered a “profoundly regrettable” miscarriage of justice. Thirteen years after her conviction, Sherry was finally able to clear her name.
The Cause of Sherry’s Wrongful Conviction
The principal reason for Sherry’s wrongful conviction was disgraced former pathologist Charles Smith’s baseless claim that she had caused Joshua’s death by suffocating him. 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 – the field he was trained in being pediatric pathology – which led to many misdiagnoses including his completely incorrect assessment of Joshua’s cause of death. Moreover, Smith was a terrible witness who often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.” Smith was eventually stripped of his medical license.
Wounds that Innocence Canada Cannot Heal
Sherry suffers from post-traumatic stress disorder due to the ordeal that she experienced surrounding Joshua’s death. She also had a difficult time finding work after her conviction.
Most hauntingly of all, Sherry told reporters after her acquittal that she had never seen Austin, her remaining son, since he was taken from her shortly before her arrest. At that time Austin was 15 and living with his adoptive family. Sherry was not permitted to visit him while he was still a minor. She did, however, send him letters at Christmas and on his birthdays, and would hear from him twice a year. Sherry explained that while she would “give anything to get him back,” it was “her responsibility as a mother to leave him where he is most comfortable at this point. He is well taken care of.”
Sherry expressed her hope that Austin would contact her once he turned 18 (in 2012), and that she could introduce him to his little sisters, Madison and Paige, who were born in 2005 and 2010. We can all hope that the family has since been reunited.
 Theresa Boyle and Tracey Tyler, The Star: “‘Baby-Killer’ Label Erased At Long Last.” December 8, 2009: http://www.thestar.com/news/gta/2009/12/08/baby_killer_label_erased_at_long_last.html [“Baby-Killer Label Erased”]; The Canadian Press: “Crown Urges Acquittal in 1999 Infanticide Case.” December 8, 2009, accessed at:
http://www.cbc.ca/news/canada/ottawa/crown-urges-acquittal-in-1999-infanticide-case-1.840930 [“Crown Urges Acquittal”]; “Sherry Sherrett Case: Aftermath; Law Times Reports Lingering ‘Aura of Infallibility’ of Expert Witnesses Could Lead to More Miscarriages of Justice,” The Charles Smith Blog. December 17, 2009, http://smithforensic.blogspot.ca/2009/12/sherry-sherret-case-aftermath-law-times.html [Charles Smith Blog].
 R v Sherrett-Robinson, 2009 ONCA 886 at paras 2 and 4-5, 86 WCB (2d) 4 [Sherrett-Robinson].
 Ibid at para 1; Kirk Makin, The Globe and Mail: “Mother Wrongly Convicted in Infant’s Death Acquitted.” December 7, 2009, http://www.theglobeandmail.com/news/national/mother-wrongly-convicted-in-infants-death-acquitted/article4294856/ [“Mother Acquitted”]; AIDWYC, “Sherry Sherrett Robinson: Surviving the Unimaginable,” (2010) 11 AIDWYC Journal 5 at 6 [“Surviving the Unimaginable”].
 Sherrett-Robinson, supra note 2 at para 1; “Surviving the Unimaginable,” supra note 3.
 Sherrett-Robinson, supra note 2 at para 7; “Mother Acquitted,” supra note 3.
 Sherrett-Robinson, supra note 2 at para 3; “Crown Urges Acquittal,” supra note 1.
 Sherrett-Robinson, supra note 2 at para 7; Charles Smith Blog, supra note 1.
 Sherrett-Robinson, supra note 2 at para 1; Charles Smith Blog, supra note 1; “Baby-Killer Label Erased,” supra note 1.
 Inquiry into Pediatric Forensic Pathology in Ontario Report (the Honorable Stephen T. Goudge, Commissioner), Volume 2: Systemic Review (2008) at 32, online: http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/index.html [“Goudge Inquiry”].
 Ibid at 68.
 “Surviving the Unimaginable,” supra note 3 at 5-6.
 Sherrett-Robinson, supra note 2 at para 6; “Crown Urges Acquittal,” supra note 1.
 Sherrett-Robinson, supra note 2 at para 5.
 Goudge Inquiry, supra note 9 at 161.
 “Mother Acquitted,” supra note 3.
 Sherrett-Robinson, supra note 2 at paras 8-10.
 Ibid at para 10.
 Ibid at para 9.
 Goudge Inquiry, supra note 9 at 41.
 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.
 “Baby-Killer Label Erased,” supra note 1.
 Ibid; “Surviving the Unimaginable,” supra note 3 at 6; “Mother Acquitted,” supra note 3.
 “Surviving the Unimaginable,” supra note 3 at 6; “Mother Acquitted,” supra note 3.