Written by: Phillip Millar 

Feb 15, 2022

When my client came to me eight months before his scheduled trial he was desperate and begging for help. I was not optimistic. He had gone through two lawyers who said his case was unwinnable. He was a father of two beautiful children at the time of the incident, one 4-year-old and one premature 4-month-old. The family was well adjusted, he was a software engineer with a pristine record of being a great citizen and had zero histories of violence or any criminal activity.   

His crime was that he was holding his 4-month-old baby when the baby suddenly had a stroke arising from a very fast onset of infection that resembles pneumonia. The baby stopped breathing, my client panicked and he called his wife for help.  

The Crown prosecutors used this against him, never having been in such a situation they asked the court to draw a negative inference that he didn’t call 9-1-1 first. My client called his wife and started CPR immediately. His wife had left the calm house just two minutes earlier to run an errand. The Crown prosecutor asked the court to believe that a calm house and a sleeping baby in a father’s arms on a rocking chair turned into a horror scene where the father shook the newborn so hard as to cause brain damage and retinal bleeding. 

The problem was there were no signs of any external injury. The problem was the baby’s neck was uninjured and yet they wanted the court to believe the father shook him so hard it caused internal brain damage. Let’s take a moment and imagine a newborn’s head and how we’re all told to support it when holding a young infant. This man was charged for shaking his baby and yet there was no injury to his neck.

This is an immigrant family who left the Czech Republic and believed in the fairness of our system. They cooperated with doctors, the Children’s Aid Society (CAS), and the police knowing they had done nothing wrong.

Unfortunately, when they x-rayed the baby they found multiple healing fractures on his ribs and arms. He was born prematurely with a vitamin D deficiency. The doctors immediately suspected/concluded it was child abuse and the children were seized by Children’s Aid. The CAS worker on the day in question interrogated the four-year-old boy with no witnesses while driving him away from the home. This was after talking to the doctor who believed there was child abuse. In the CAS worker’s notes made after the drive, she stated that the young boy confirmed her suspicions. At trial, the boy, now seven years old, under oath denied saying any such thing.

Despite repeated requests, the Crown prosecutors would not let this father see his children for three years. It was devastating and heartbreaking. His previous lawyers told him you can’t beat these charges and that he should plead guilty. He came to us as a last resort as he heard we took on tough cases. I could tell this man was not a child abuser, the case made no sense. I wondered why no one was willing to fight for his family. We hired experts and discovered the junk science of shaken baby syndrome. We hired experts that exposed the unreliability of the doctors’ conclusions. We fought tooth and nail to help reunite this family after 3 years of hell.

The most memorable part of the trial was as follows:

The eldest boy, now seven years old, was called by the Crown to testify against his father. It is not easy for anyone to experience such conflicting emotions. The young boy was herded by victim’s services social workers into a separate room in the courthouse equipped with TVs to give evidence away from the judge and his father. He was endearing, earnest, and polite. He eloquently explained his observations and the confusion the CAS workers had presented. He emphatically stated that his father did not hurt anyone. He said he missed his dad and asked when he could see him. I was in that room with the young boy, his father was forced by the judge to sit in the prisoner’s box and watch the video with tears streaming down his face.

After his son’s emotional testimony I came back to the courtroom to speak to my client. He was drained, so I asked him to step outside the courtroom to discuss what just happened and how good of a job his son did. As we stepped outside the courtroom we looked down a long hallway and as fate would have it at the same moment, the young boy was being escorted out of a room. They were 100 feet away from each other. The boy turned and saw his dad and immediately started crying out “Daddy” as he ran toward him.  

The worker dragged him away and into a room as he struggled to run to his dad. My client collapsed on the floor in despair, he had not seen his son for three years until this moment. Standing there, in my suit, I cried like a baby as I tried to pull this father up to his feet.   I remember thinking to myself, I will die before I let this man go to jail and will do everything I can to reunite him with his son.

One week later the entire office waited with bated breath for the Judge to hand down his decision. There was not a soul in our law firm whose eyes were not glued to every TV throughout our law firm. When the Judge found him Not Guilty it was like a touchdown in a football stadium. Cheers erupted, people danced and cried at the same time. It was overwhelming and rewarding and we all suddenly felt exhausted from the battle. Our client was thankful and we told him to rush home to finally reunite with his family and hug his children. 

This story was recently featured on CTV’s W5 which can be watched here. It exposed the dangers of poor diagnosis and the risks of wrongful convictions. Sadly for people who do not have the funds to mount a defense, they are often forced to take guilty pleas or face lengthy jail times. As a law firm, every staff member from every department worked to help this family and it shall remain a memory that will never be forgotten. 

Sometimes the doctors get it wrong, they miss a diagnosis, they make a terrible mistake. It is not easy to challenge the doctors but they can be beaten when they make a mistake if you have the right team on your side.