Case Summary
Photo Credit: CBC/Chris O'Neill-Yates
On August 16, 1996, Bernard (Bernie) Doyle, a 23-year-old roofer from Bell Island, Newfoundland, was looking after his partner Michelle Cunningham’s 17-month-old son, Tyler.1 That afternoon, Doyle was playing music and dancing with Tyler in his arms. His neighbours who lived across the hall would later testify that they heard “Doyle singing as Tyler laughed.”2 But only a few minutes later, Doyle “tripped over his roofing tools that were lying on the floor.”3 He fell and “landed on top of Tyler, whose head hit the sharp edges of his tools.”4
Seeing that Tyler had lost consciousness, Doyle ran to his neighbours’ apartment for help. They called 911 and Tyler was taken to the hospital. The baby had sustained severe head injuries. The next day, Tyler was removed from life support and died.5
Ten days after Tyler’s death, Doyle was arrested and taken to the police station, where he was interviewed for around three hours. Police relentlessly “accused him of violently shaking Tyler.”6 At first, Doyle tried to explain that Tyler’s death was a tragic accident. Police would not hear it, and pressured him to confess.7 In Doyle’s words: “they were drilling me for hours, and bullied me, and made me say what they wanted to hear … [they were] “telling me I was lying and saying … they didn’t believe me, they weren’t going to take that.”8 It was made clear to Doyle that he would be trapped until he confessed. The police would not let him go to the bathroom.9
The interrogation was “so traumatic that [Doyle] almost began to believe what they were telling [him].”10 Finally, as he described it, “after all the hours that the men were badgering me, … I had fallen and broke and caved, and … I said something that wasn’t true.”11 Doyle now told the police that Tyler had lost consciousness while he was dancing vigorously with the baby in his arms, causing Tyler’s head to move or jerk from side to side.12
Though Doyle never did agree to having shaken Tyler, police interpreted this account as the confession they were seeking. Doyle was charged with manslaughter. He was denied bail and spent six months in pre-trial detention.13
At Doyle’s 1997 manslaughter trial, the jury heard that he had given police two different versions of the events that led to Tyler’s death.14 They also learned that Children’s Aid had investigated an injury Tyler received two weeks before his death, from a “severe spanking”; Doyle had denied striking Tyler, telling the social worker that he thought the babysitter was responsible.15
But the centre of the Crown’s case was its medical evidence: two experts, Dr. Chitra Rao and then renowned pediatric pathologist Charles Smith – the Director of the Ontario Pediatric Forensic Pathology Unit at Toronto’s celebrated SickKids Hospital – rejected Doyle’s explanation for Tyler’s injuries.16 They opined that his death resulted from “blunt force trauma and ‘shaken baby syndrome.’”17 Smith testified that: “I prefer blunt impact over shaking. The most likely explanation is it’s a combination of the two.”18 He was “very skeptical” of Doyle’s explanation that Tyler had been injured in a fall.19
Just before Christmas, after 15 hours of deliberation, the jury found Doyle guilty of manslaughter. One juror cried while the verdict was delivered.20 Michelle Cunningham welcomed the verdict, throwing “her arms around the prosecutor” after it was read and thanking him outside the courtroom.21 She told reporters that “she ‘felt bad’ for Doyle. ‘But at the same time, he did wrong and he’s got to pay the consequences for what he’s done.”22
Doyle, then 25, was sentenced to three years’ imprisonment in addition to his six months of pre-trial detention. After the sentencing hearing, Cunningham told reporters that Doyle’s sentence was too lenient.23
Doyle served his entire sentence in a maximum-security prison.24 After his release, he was prohibited from being alone with his children. Through the years that followed, the Children’s Aid Society would continue to restrict their interactions. Doyle’s youngest child had never been allowed to live with her father at the time of his eventual acquittal.25
In the decade after Doyle’s conviction, increasingly grave concerns came to light regarding Charles Smith’s forensic pathology work. In June 2005, the Chief Coroner of Ontario announced that a formal review would be conducted of all forensic pathology cases from 1991 to 2002 where Smith performed the autopsy or acted as a consultant.26 The results of the Chief Coroner’s Review were released in April 2007. In 20 of the 45 cases surveyed, the reviewing experts took issue with Smith’s interpretation of the evidence in his written report, testimony, or both.27
In the wake of these troubling conclusions, Justice Stephen Goudge was appointed to lead a public inquiry into pediatric forensic pathology in Ontario.28 The Goudge Inquiry Report, published October 2008, revealed a staggering list of serious problems with Smith’s methodology and impartiality.29 Justice Goudge noted that Smith’s background in forensic pathology was “woefully inadequate,” since he had only been trained as a pediatric pathologist.30 Moreover, Smith “did not always ensure that he had all the relevant medical information before he conducted an autopsy,” and he was “sloppy and inconsistent in documenting the information” that he did have.31 In addition, Smith failed in his role as an expert witness by presenting his opinion in a “dogmatic and certain manner when the evidence was far from certain.”32 Justice Goudge found that Smith often “provided unbalanced or emotive testimony, which tended to invite inappropriate and adverse conclusions.”33
Moreover, Justice Goudge addressed the “significant evolution in pediatric forensic pathology relating to shaken baby syndrome and pediatric head injuries” that had taken place in the preceding decades.34 He discussed the increasing uncertainty – and controversy – that surrounded the “shaken baby syndrome” (SBS) diagnosis: a “heated debate [had] emerged within the medical community as to the significance” of the “triad” of pathology findings “traditionally considered diagnostic for SBS.”35 By 2008, “a contrary view [had] emerged” that this triad “could be caused by other conditions, including an impact injury to the head, as in an accidental fall.”36
Justice Goudge also observed that the “SBS controversy” was thus “linked to the controversy” that had emerged “surrounding ‘short falls’” – that is, “low-level” or “small falls [in] the home.”37 He noted that “in some cases caregivers suspected of having shaken a baby” had, like Doyle, “stated that the child was not shaken, but was rather the victim of a short household fall.”38 Previously, “some experts had expressed the view, often in absolute terms, that “short falls [could not] cause significant head injury leading to death” because they “were unable to generate sufficient force.”39 By 2008, other experts had taken the opposing view that “short falls could, on rare occasions, result in serious head injuries and death.”40
Justice Goudge concluded that, given these shifts in medical opinion, “a further review” should be conducted of cases “concerning shaken baby syndrome and pediatric head injuries over the last two decades,” in order “to determine if any resulted in potentially wrongful convictions.”41
In December 2008, the Ontario Attorney General commenced a “review of pediatric cases that resulted in criminal convictions based on evidence of abusive head trauma or ‘shaken baby syndrome.’”42 The committee of “medical and legal experts [assembled] to conduct the review” carried out this work for more than two years,43 identifying a number of potentially troubling cases to be “re-evaluated … by a panel of international doctors.”44 This panel flagged Doyle’s case as one of four “where convictions were based on evidence that was ‘of concern.’”45 Following the March 2011 publication of the Shaken Baby Death Review report, the Attorney General’s office contacted Doyle and the other affected people “to inform them of the results … so they [could] decide how to proceed.”46
The previous month, Smith had been stripped of his medical licence, at a February 2011 disciplinary hearing for disgraceful conduct.47
In 2013, the wrongful convictions advocacy organization Innocence Canada took on Doyle’s case and retained experts to assist him in challenging his conviction.48 In January 2014, Justice Marc Rosenberg of the Ontario Court of Appeal granted Doyle leave to appeal beyond the normal 30-day period, given the troubling results of the Goudge Report and the Shaken Baby Death Review.49
Over the following nine years, Innocence Canada worked on preparing Doyle’s appeal. In Canada, most post-conviction legal support is provided pro bono by volunteer lawyers. As a result, it often takes years to prepare and file the materials required for an appeal based on new evidence (such as Doyle’s) or an application to the Minister of Justice for a conviction review.50 During this time, Innocence Canada filed reports from three expert witnesses—a forensic pathologist, a neuropathologist, and a biomechanical engineer—who had reviewed the medical evidence that the prosecution called at Doyle’s trial. The Crown also retained its own expert: Dr. Michael Pollanen, the Chief Forensic Pathologist for the Province of Ontario.51
The Court of Appeal heard Doyle’s case in June 2023. In advance of the hearing, the court reviewed the “fresh evidence” (i.e., new evidence that Doyle’s jury did not have), which included the four expert reports and an affidavit sworn by Doyle in which he described the ordeal he had undergone at his police interview. All four of the experts agreed that “in light of more modern forensic science, the Crown’s trial experts were wrong.”52 They concluded that Doyle’s account was “consistent with all the injuries Tyler suffered.”53 The preferred expert theory was that Tyler had been the victim of a “complex fall”, with “multiple injuries due to multiple points of contact.”54
Dr. Pollanen also told the court that while the “shaken baby syndrome” theory was widely accepted in 1996, that was no longer the case 24 years later.55 Although the “shaking injury” theory had “dominated” the testimony called at Doyle’s trial, by the time that Dr. Pollanen wrote his report (2020), it was “highly unlikely that shaking would be seriously discussed as a potential mechanism of injury.”56 Dr. Pollanen noted that, “to be fair, the testimony of Drs. Smith and Rao was almost entirely aligned with the mainstream views in the medical literature at the time of the trial. Therefore, although by today’s standard the testimony would be non-representative of commonly held views, it was largely ‘correct’ for the time.”57
The Ontario Court of Appeal acquitted Doyle, having concluded that there was “no prospect that [he] could be convicted again.”58 The court rejected the Crown’s “argument that [the] differences in [Doyle’s] explanation” to the police “of the events leading to Tyler’s death … warrant[ed] a new trial.”59 It observed that Doyle’s police interview was “a gruelling interrogation” where the police used “abusive techniques”: “No weight can be put on the interview.”60
After his acquittal, Bernie Doyle told reporters, “the justice system has worked for me at last…. But I will never forget Tyler. He was a wonderful boy who had lots of promise.”61 Doyle described his experience as “a nightmare that didn’t end…. I hope nobody ever has to go through anything like that.”62 He added: “I can’t wait to go home and hold my children and my mom…. To walk around with my head held high.”63 He also hoped that in light of his acquittal, Children’s Aid would allow his 11-year-old daughter to live with him.64