Another obstacle for wrongly convicted man

Another obstacle for wrongly convicted man
Last Updated: June 16, 2010 6:53pm


A lost autopsy report has blocked Roy Simmons' attempt to have his name cleared.
Roy Simmons — one of the people wrongfully convicted and jailed by disgraced pathologist Dr. Charles Smith — just wants his name cleared.

But the Ontario Coroner’s Office has lost the independent autopsy clearing Simmons and the Crown won’t go ahead without it.

That means Simmons would have to exhume his grandson again — something the family just couldn’t take, he said.

“I’m flabbergasted,” Simmons said.

“They want me to exhume the baby after 16 years because they have no records from the independent pathologist. There is no reason for this.”

On May 1, 1993, Simmons was feeding Tyler — who had a history of choking on his formula — when the three-month-old infant stopped breathing after vomiting and getting fluid in his lungs.

Paramedics were called and Tyler was taken to the Midland hospital. Because he wasn’t breathing on his own he was put on life support.

Hospital staff were having a hard time placing the intravenous tube and they had to stick it in his head before he was air-lifted to Sick Kids.

Simmons and his daughter, Jennifer Stowe, drove to Toronto and had a meeting with doctors to find that Tyler had a fracture in his skull from the intravenous.

Tyler was later pronounced dead.

While Stowe was making funeral arrangements, the funeral director told her she couldn’t have an open casket because the coroner had removed Tyler’s eyes without permission.

Stowe says when she found out her baby had been “butchered” she almost died.

Stowe started a lawsuit against the coroner’s office and says officials told her it wouldn’t be a good idea to follow through.

A week later police busted down Simmons’ door and arrested him.

At Simmons’ manslaughter trial, Smith testified the skull fracture was not accidental and Simmons was convicted and spent seven years in jail.

This is a never-ending nightmare, Stowe said.

“We are going for an appeal, and the Crown wants the full independent autopsy report,” Stowe said. “I just can’t believe the coroner’s office misplaced the complete report. The only thing they have is the original one by Dr. Smith. I can’t for the life of me see how this could happen.

“I am sick and tired of this. I lost my son 16 years ago and I need to move on and I can’t. With all this it is like I have adopted a child — my dad. His life has been ruined and he is ready to give up.”

The Coroner’s Office didn’t have much to say about the missing autopsy.

“I don’t know where that autopsy would be, but if this is subject to an appeal I couldn’t tell you anything,” said Cheryl Mahyr of the coroner’s office.

kevin.connor@sunmedia.ca

Tammy Marquardt and Roy Simmons

Ontario Attorney General Chris Bentley addresses the media in Toronto on Tuesday about discredited Toronto pathologist Dr. Charles Smith and payments offered to victims. (ERNEST DOROSZUK/QMI Agency)

TORONTO - Tammy Wynne Marquardt was wrongfully convicted of the death of her two-year-old son by the testimony of disgraced pathologist Dr. Charles Smith and spent 13 years in jail and lost her other two children when the province adopted them out.

For all of that, the Ontario government says she is entitled to up to $250,000 in compensation.

One would think the province would have added one more zero to the $250,000 in compensation, said Wynne Marquardt, who's working on being exonerated and is one of the dozens of people whose lives were destroyed by Smith.

"Life isn't easy. I'm scrapping pennies together to make ends meet. Their compensation isn't a lot for what I have gone through. Nothing will change what they have done," she said.

"This is a recognition payment ... $250,000 is a lot of money," Ontario Attorney General Chris Bently said Tuesday.

"The flawed work of Dr. Charles Smith has deeply affected the lives of many people in Ontario. Today we are moving forward with payments to recognize the impact of that experience," he said.

Two years ago, the McGuinty government promised to do everything they could to help the victims.

But Wynne Marquardt says the Crown is only offering to stay the conviction and keeps pushing back court dates.

That has Wynne Marquardt worried about the statute of limitations for her civil lawsuit, so she will be applying for the compensation.

While she may be granted up to $250,000 if deemed eligible, a child who was removed from their home or adopted out may receive $25,000 if they can be found and a family member of one of the victims may apply for up to $12,500, but only if they do so in the next 90 days.

Roy Simmons spent seven years in jail after being wrongfully convicted in the death of his grandchild.

"(The compensation) doesn't take away from the grief and loss and the amount is an insult," Simmons said.

"They would offer my mother $12,500. She visited every chance she could and she suffered just as much as me. I saw the tears in her eyes," Simmons said.

He is also having trouble getting the courts to clear his name.

The Crown told him he needs to get a copy of the independent autopsy that says Smith's finding were illogical but was told by the coroner's office they couldn't find the report.

Weeks later the coroner's office told him the Attorney General's office, which oversees Crown attorneys, had come and taken the report.

Bently said he won't comment on individual cases.

"I can't do this any more," Simmons said. "I can't live my life like this."

NDP justice critic Pete Kormos described the compensation as paultry and is an embarrassment.

"This is just another harm being done to these victims of the state. They served hard time and this is just another assault on these people," Kormos said.

Ted Chudleigh, the Conservative justice critic, questions if the victims will ever see the justice they deserve.

"Families were torn apart and individuals' lives were destroyed as a result of Dr. Charles Smith's work," he said. "I'm glad victims have finally received an answer but the Attorney General's $250,000 'recognition payment' is not enough to acknowledge the harm they are forced to live with each day."

kevin.connor@sunmedia.ca

Roy Simmons

ROY SIMMONS; ONTARIO; The Goudge Inquiry into many of Dr. Charles Smith's cases heard shocking evidence of a 1990 case in which Smith mislabelled DNA evidence. Roy Simmons, the accused, was subsequently convicted of manslaughter and incest. We are following Simmons' attempts to obtain the original autopsy report - he was originally told it was missing and then that it existed - and his efforts to use it to clear himself.