The Supreme Court of Canada has ordered new trials for an Ontario couple convicted in their child's death, ruling that fresh evidence "discredits" key testimony from now-disgraced pathologist Dr. Charles Smith.


Marco Trotta was set free on bail in May 2007. ((CBC))

The court handed down the 9-0 ruling in Ottawa on Thursday, after hearing an appeal of the convictions ofMarco and Anisa Trotta of Oshawa, Ont.

Marco Trotta was convicted in 1998 of second-degree murder, aggravated assault and assault causing bodily harm in the 1993 death of his eight-month-old son, Paolo. He wassentenced to life in prison with no chance of parole for 15 years, but was ordered freed on $100,000 bail in Maypending the Supreme Court's review.

His wife was convicted of criminal negligence causing death and failing to provide her son with the necessities of life.She was handeda five-year prison sentence.

Smith was considered a leading expert on pediatric forensics at Toronto's Hospital for Sick Children, where he practised for 24 years.

In the first autopsy in Paolo's death, Dr. David Chan could not nail down a specific cause of death, but suggested it might have been due to sudden infant death syndrome.

But after the couple's son Marco Jr., was taken to hospital with a broken leg a year later, police reopened their investigation. Paolo's body was exhumed and Smith claimed to have found evidence of longstanding abuse leading to death from a skull fracture.

However, Smith's work is now the subject of a provincial public inquiry after an international panel examined dozens of cases involving evidence from the pathologist and found errors in his conclusions in13 casesthat resulted in convictions — including the Trottas'.

Crown conceded Smith's errors

In October, Ontario Crown prosecutor Lucy Cecchetto conceded to theSupreme Court thatSmith made significant errors in theautopsy, but said a jury still had plenty of evidenceof "a lifetime of abuse" to conclude the couple killed their child.

But in its decision, the top court ruled thatSmith's findings in the Trotta case were unreliablebased uponevidence presented bytwo expertforensic pathologists who testified for the defence in the couple's appeal.

"Essentially, the fresh evidence … discredits the evidence given at trial by Dr. Charles Smith," Justice Morris Fish wrote in the court's decision.

"In this light, we think it is neither safe nor sound to conclude that the results on any of the charges would necessarily have been the same but for Dr. Smith's successfully impugned evidence."

The Trottas' convictionsare not the first to be overturned after Smith's work was questioned.

In October,the Ontario Court of Appeal acquitted William Mullins-Johnson,a Sault Ste. Marie man who spent12 years in prisonafter beingconvicted in 1994 of the first-degree murderof his four-year-old niece, partly on Smith's testimony.

A jury convicted Mullins-Johnson despite an absence of forensic evidence linking him to the crime. He has always maintainedhis innocence.

Mullins-Johnsonwas released in 2005 after evidence surfaced that Smith had lost the tissue samples that could have shown the child died of natural causes. Smith had testified that Mullins-Johnson's niece, Valin, had been sexually assaulted and strangled.

Smith left Ontario in 2005 to work as a pathologist in Saskatchewan. He is now believed to be living in British Columbia.