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Crown withheld key evidence in baby's killing, mother's court filing says

Brenda Waudby leaves an inquiry hearing in Toronto in 2007.

Kevin Van Paassen/Kevin Van Paassen/The Globe and Mail

A Peterborough mother wrongly prosecuted in the murder of her baby daughter alleges in a court filing that Crown prosecutors withheld vital evidence from the real killer's confession. In addition, she alleges the Crown misled the Goudge inquiry, which largely focused on discredited pathologist Charles Smith.

Brenda Waudby was arrested in 1997 for the murder of her 21-month-old daughter, Jenna, who died of "blunt abdominal trauma," including 13 fractured ribs. The charges were stayed in 1999 when the police and Crown began to have serious doubts – which at the time they kept to themselves – about much of Dr. Smith's evidence. The former pathologist was stripped of his medical licence early this year.

But faced with the prospect of losing custody of her two other children, Ms. Waudby accepted a deal to plead guilty to child abuse when the Crown – still relying largely on Mr. Smith's work – said there were "old rib injuries" inflicted on Jenna before the night she died.

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Ms. Waudby is now seeking to overturn her guilty plea, which to this day keeps her on the child-abuse registry, as "involuntary and uninformed." Last week, she filed new claims before the Ontario Superior Court of Justice about what police and the Crown knew about the fatal rib injuries.

In 2005, police arrested a young man who had babysat for Jenna the night she died when he was 14 years old. The man, who cannot be identified because he was a minor at the time of the crime, told an undercover police officer he had badly beaten and burned the child.

The babysitter "specifically and repeatedly confessed to breaking Jenna's ribs," Ms. Waudby's appeal states, quoting previously undisclosed transcripts from his confession and the police arrest report.

The police report, noting that the man admitted to hitting the baby with "good solid jabs to the stomach area," concluded: "He believed they would have broken ribs."

But Ms. Waudby's appeal said that was "directly contrary" to what the Crown read in court when the babysitter pleaded guilty a year later. "He believed they wouldn't have been enough force to break ribs," Crown attorney Brian Gilkinson told the court, according to the trial transcript.

The babysitter got a 22-month sentence for manslaughter as a young offender but in effect the blame for the severe rib injuries still appeared to lie with Ms. Waudby.

The Crown also failed to disclose the full information about the rib injuries at the commission of inquiry led by Justice Stephen Goudge into Mr. Smith's flawed work, according to Ms. Waudby's appeal. Though the commission's 2008 report harshly condemned the wrongful accusations against Ms. Waudby and several other parents for killing their children, it continued to refer to "the rib fractures that … formed the basis for the child abuse conviction" in Ms. Waudby's case.

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"I cannot understand why… they have allowed me to sit with the label of 'child abuser' for all these years," Ms. Waudby states in an affidavit filed with her appeal.

Ms. Waudby's counsel and the Crown recently made a joint request for a new analysis of the rib fractures by Dr. Christopher Milroy, a forensic pathologist at Ottawa Hospital who also provided expert testimony at the Goudge inquiry.

He determined that the rib injuries occurred "in the hours not days before death" and "in the same time period as the fatal injuries" inflicted by the babysitter.

The Crown still has to file its response to Ms. Waudby's claim. The hearing of the appeal will get under way next year.

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