Brenda Waudby Cleared

June 28, 2012 permalink

After fifteen years in legal purgatory, Brenda Waudby has been completely cleared. It takes the crown a long time to correct its mistakes. The ordeal started when Branda's daughter Jenna was murdered. Brenda was at first accused of murder, but pleaded guitly to criminal child abuse under an agreement that allowed her to retain custody of her two remaining children. In 2007 the real killer, a babysitter, was convicted. It took the crown until 2009 to vacate Brenda's conviction, and until now to get her off the provincial child abuse registry. The article says that judge Michelle Fuerst ordered CAS to remove Brenda from the child abuse registry. That is beyond the powers of a family court judge, but this was not family court.

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Judge overturns Waudby's 1999 child abuse conviction

By Sarah Deeth, Peterborough Examiner, Wednesday, June 27, 2012 1:37:57 EDT PM

Brenda Waudby comforts her daughter Justine Traynor after speaking to reporters on Wednesday, June 27, 2012 following having her 1999 child abuse conviction overturned at Superior Court in Peterborough.

CLIFFORD SKARSTEDT/PETERBOROUGH EXAMINER/QMI AGENCY

Brenda Waudby is no longer a perpetrator of a violent crime against a child. She is no longer a criminal.

She is now simply the mother to a young woman and a young man, and the grieving mother of a child whose violent murder was the event that set off her long legal nightmare.

On Wednesday morning Madam Justice Michelle Fuerst overturned Waudby’s 1999 child abuse conviction, acquitting her of the charge.

The ruling capped a 15-year ordeal for Waudby, the last step in a long, hard journey to clear her name.

During the emotional Superior Court proceeding, Waudby heard something she’s waited 15 years for: an apology, issued by Crown attorney Alison Wheeler, who acknowledged that Waudby’s conviction was a miscarriage of justice.

“The Crown apologizes to Brenda Waudby,” Wheeler said.

Her child, 21-month-old Jenna, was the victim of a homicide, Wheeler said.

“Ms. Waudby should have been treated as a grieving parent. She was not,” Wheeler said.

Instead, Waudby became the prime suspect, interrogated by police and eventually charged with murdering her child in 1997.

She was stigmatized by the community, Wheeler said, and her two children were taken from her by the Children’s Aid Society.

It was wrong, Wheeler said, and it’s taken a long time to set it right.

“For all of this, the Crown is deeply and sincerely sorry,” she said.

It was an apology Waudby said she accepted whole-heartedly.

“I almost can’t believe this day has arrived,” Waudby said, her voice breaking as she addressed the court.

Then she read a part of the victim impact statement she read to the court in 2007, the day her former babysitter went to jail for Jenna’s death.

Jenna was a beautiful child, she said, just on the verge of walking. She had already learned her first word. It was “mom.”

Waudby told court she carries a tremendous amount of guilt. She was supposed to keep Jenna safe, she said, and let her daughter down.

Police charged her former babysitter with second-degree murder in 2005. He pleaded guilty to manslaughter in 2006 and was sentenced to 22 months in custody in 2007.

In his confession to police he admitted that he hit Jenna several times that fateful night, angry that he had to babysit.

Waudby’s murder charge was dismissed in 1999.

At the time she was facing the prospect of losing her two children for good, Waudby told court, and she took the only option she thought she had. Her understanding was that she could plead guilty to having abused Jenna prior to her death and the murder charge would be withdrawn.

That, she said, would get her two children back.

And it worked. Both children were returned to her following the guilty plea.

But the ordeal didn’t end.

Mistakes were made, she said, again and again and compounded over time.

“It was like a freight train that couldn’t be stopped,” she said.

The basis for both the child abuse and murder charge lay in the shoddy work of disgraced former child pathologist Dr. Charles Smith, who told investigators Jenna was injured while she was in Waudby’s care.

Smith also said he discovered “old” rib injuries, which he said were an indication of previous abuse. Smith was later found to have given false testimony in a series of child death cases. He was stripped of his medical licence last year.

Wheeler conceded that if the forensic pathology was done correctly in the first place, Waudby never would have been charged with anything.

When the babysitter pleaded guilty Crown attorney Brian Gilkinson told court the sitter admitted that his blows to Jenna’s abdomen “would’ve” caused rib injuries.

But there was an error in the official court transcript, and Gilkinson’s statement read, “wouldn’t have.”

The transcript was entered into proceedings during the Goudge Inquiry, a 2007 hearing that examined Smith’s work and child pathology in the province.

The error became part of the public record.

It wasn’t discovered until Kirkpatrick sought a court order allowing her to listen to the taped recordings of the babysitter’s proceedings.

The babysitter’s confession was never disclosed to Waudby, nor was a medical report that indicated Jenna’s injuries may not be old, or notes written by investigators that indicated they realized Waudby may not be guilty of child abuse.

Waudby’s lawyer, Julie Kirkpatrick, hammered on these facts in her submissions to the court.

As she put it, the babysitter’s confession and a new pathology report fit together like a hand and glove.

“All of the injuries occurred in the same time frame, and occurred under the babysitter’s watch,” Kirkpatrick said.

“It is now an incontrovertible fact that Jenna did not have any old injuries when she died,” Kirkpatrick said.

Kirkpatrick withdrew a Charter of Rights application at the start of Monday’s proceedings. It would have argued that her right to disclosure was violated when police failed to tell her that new evidence suggested the babysitter may have caused Jenna’s rib injuries. Police also failed to tell the Children’s Aid Society that there were serious flaws with the forensic evidence, and that it was likely the murder charge was going to be withdrawn. That charge was the only grounds the CAS had to seize Waudby’s children.

The Crown was prepared to oppose that application.

Wheeler also indicated that the Crown did not agree that Waudby pleaded guilty to child abuse in exchange for withdrawing the murder charge.

The Crown will pay for Jenna’s reburial, Wheeler said. Unbeknownst to Waudby, her daughter was buried without her ribcage, which wasn’t disclosed to her until 2010.

The Crown is also making arrangements for Waudby to speak with a senior justice official, Wheeler said, to discuss concerns she has with the babysitter’s prosecution.

Waudby will also meet with forensic pathologist Chris Milroy, to discuss any remaining questions she has about Jenna’s death.

Waudby has settled her lawsuits filed against the province, Smith, the city police service and the Children’s Aid Society.

She has been compensated through the Goudge Inquiry and Wheeler said a similar process has begun for her acquittal.

Waudby’s name will also be removed from the Child Abuse Registry. Fuerst ordered her name to be removed no later than July 11.

sarah.deeth@sunmedia.ca

Source: Peterborough Examiner