Justice Brian Trafford paid "nothing more than lip service" to well-established legal principles for determining whether a trial delay is unreasonable, Crown counsel Michal Fairburn told a three-judge panel of the Ontario Court of Appeal.
He also misused the most powerful Charter weapon at his disposal ? the ability to stay criminal charges ? to punish the Crown for conduct he did not like, she said.
Watching from the back of the courtroom yesterday as the Crown tried to resurrect its case were Anthony Kporwodu and Angela Veno, whose daughter Athena died on March 6, 1998.
An autopsy conducted by controversial pediatric pathologist Dr. Charles Smith found she had 32 rib fractures, brain injuries, a lacerated liver and a broken toe.
In throwing out charges in June 2003, Trafford, a former high-ranking Ontario prosecutor, said the conduct of the Crown, the Ontario coroner's office and Toronto police deprived the couple of an opportunity to demonstrate their innocence for an "unconscionable" 70-month period, from the time of Athena's death to when the case was finally expected to go to trial.
Their loss in human terms was almost "palpable," he added. They not only lost their daughter. After a homicide investigation commenced, their toddler Julius was seized by the Children's Aid Society and ultimately sent to live with his paternal grandparents in Ghana.
Veno became pregnant again but ended up having an abortion after a CAS worker told her that child would likely also be seized.
The pair was left unable to resolve their grief, Trafford said.
The Crown appealed his ruling and a hearing, which is slated for three days, began yesterday.
The case is raising questions about how courts should assess whether a trial delay is unreasonable, a sensitive subject for Ontario's justice system since the notorious 1990 Askov case led to the wholesale staying of thousands of charges.
It's also focusing on the conduct of Smith, who played a critical role in the case and whose work in other criminal cases has been questioned.
In this case, Trafford said Smith's nearly two-year delay in completing an autopsy report was not only "shocking" in its own right but led to the unauthorized cremation of Athena's remains, contrary to her parents' wishes. They found out when the crematorium called and asked them to come and pick up an urn containing her ashes, Trafford noted.
He also had harsh words for Crown attorney Rita Zaied, saying she put up an "unprincipled" resistance to requests from the couple's lawyers for reports from other autopsies Smith had performed.
Just before Smith was about to take the witness stand at the couple's preliminary hearing in 2001, murder charges against two other women accused of killing their children were withdrawn in the face of concerns about his work, the court was told yesterday.
One was Louise Reynolds, of Kingston, Ont., who was charged with killing her seven-year-old daughter, Sharon, in 1997. The charge was withdrawn after a leading expert on bone marks contradicted Smith's findings and supported Reynolds' claim that her daughter was killed by a pit bull.
Although Trafford found Smith was in a position to offer a preliminary opinion on Athena's cause of death by May 1998, his final report was not delivered until the spring of 2000 when he was under threat of being called to court to explain the delay, the court was told yesterday.
The timing was not "ideal" and while the Crown did everything it could to get Smith to deliver his report it bears some blame for the delay, Fairburn conceded. But while the overall delay was "unfortunate," it was not unreasonable, she told justices Michael Moldaver, Eileen Gillese and Russell Juriansz.
Trafford said the couple had been waiting for Smith's report in order to determine whether they should arrange for a second autopsy. That, in turn, is why they wanted their daughter's body preserved.
The hearing continues.
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