Ontario mom finally cleared of 1999 ‘shaken baby’ death - Toronto Star

The Ontario Court of Appeal at Osgoode Hall.

Calling it another in a “sad litany” of wrongful convictions, Ontario’s highest court on Tuesday finally acquitted Jennifer Gaskin of manslaughter in the death of her infant son — a conviction that was based on the “discredited” shaken baby syndrome as the cause of his death.

“She is a victim of a miscarriage of justice,” brought by, in part, unreliable expert evidence, Justice Peter Lauwers of the Court of Appeal for Ontario said on behalf of a three-judge panel.

On July 2, 1999, 12-week-old Joeseph Gaskin died in his home in Ignace, Ont. Months later, on March 5, 2000, his mother was charged with second-degree murder. She was alleged to have shaken the baby to death.

A jury convicted her of manslaughter in 2002 and sentenced her to two years in prison, a sentence she served. In the meantime, her two other children were taken from her and put up for adoption. 

Gaskin always maintained she did nothing wrong to cause her son’s death.

“I never struck Joeseph and I never shook him. I did nothing to cause his death. I have never felt able to breathe freely because I feel everyone sees me as a monster,” she wrote in a sworn affidavit.

Now 51, Gaskin broke down in tears in the court after Lauwers concluded his remarks. Sitting next to her was her mother and her daughter — whom she met for the first time Monday after not seeing her since she was 15 months old.

Her son was on his way to the downtown Toronto courtroom but fell ill en route from Dryden, Ont., and had to turn back, “so that reunion hopefully will occur in the near future,” her lawyer, James Lockyer, told the court.

He called the case “a tragedy” on many levels.

The Crown consented to the admission of fresh evidence, and agreed her conviction should be set aside and an acquittal entered.

In 1999, Gaskin was 23 when she delivered Joeseph, nine-and-a-half weeks prematurely. He had severe medical issues and remained in hospital for two months. In the days leading up to his death, Joeseph was unwell. Gaskin and her partner took the child to a hospital. Back at home, he turned blue, stopped breathing and died. 

In an autopsy, a physician suspected some shaking may have occurred but concluded Joeseph died of a head injury. Police then called in a second opinion and solicited the opinion of a pathologist. He concluded the baby was shaken and “died from the resultant injuries.” 

At her trial in Northern Ontario, the Crown’s theory was that Gaskin had vigorously shaken that infant because he was crying and she was frustrated. Two medical experts testified in support of the prosecution.

Lockyer told the court a “miscarriage of justice” was lurking, but “shaken baby won the day.” Lockyer is a veteran of high-profile cases of the wrongly convicted such as David Milgaard, Guy Paul Morin and Steven Truscott.

After the Court of Appeal granted Gaskin an extension to appeal her conviction based on fresh evidence, Lockyer and his team retained three medical experts to prepare reports.

One doctor warned that other potential causes of death may have been overlooked. A second said shaken baby syndrome remains an unproven hypothesis and that research does not support the notion that shaking alone can generate enough force to injure an infant. The third found the cause of death was ultimately undetermined.

The appellate court found these reports show that Gaskin’s conviction is “unsustainable.”

It bears repeating that it is “profoundly regrettable that because … of what has been shown to be flawed pathological evidence, Ms. Gaskin was wrongfully convicted. We allow the appeal, set aside the conviction, and enter an acquittal,” Lauwers said.

A total of 129 shaken baby cases were reviewed following revelations that Charles Smith, the head pediatric forensic pathologist at the Hospital for Sick Children, made errors in hundreds of autopsies. Thirteen were singled out for re-evaluation by a panel of international doctors.

The panel found four cases where convictions were based on evidence that was “of concern.” Gaskin was one of them, although hers was not one of Smith’s cases.

Betsy Powell is a Toronto-based reporter covering crime and courts for the Star. Follow her on Twitter: @powellbetsy.