Though Colin James Matchim remains in custody, waiting to be sentenced for aggravated assault, his lawyers think they may have grounds to reopen his case, or at least provide new evidence before Matchim is sentenced.
But even if the court allows the new evidence to be heard, it could be a while before that happens.
Matchim, 26, was convicted in May of shaking his baby daughter in March 2009.
During his trial Matchim was represented by Scott Hurley, but he has since hired Bob Simmonds and Erin Breen to be his lawyers.
Wednesday morning in Sup-reme Court, the pair argued that new evidence in the form of expert witnesses has come to light and asked the court for the chance to present it.
Before Simmonds could state his case, however, Justice Wayne Dymond noted his jurisdiction in the case is limited.
“A conviction has been registered,” he said. “I’ve got to be careful what I’m doing. I certainly don’t want to open this up to a free-for-all.”
The judge also pointed out that an expert witness testified at the trial for the defense.
But Simmonds said the three new expert witnesses — one from the United Kingdom and two from the United States — were discovered late in the game and the Crown and court were notified as soon as they were found.
He also argued that one of the principal tenets of the justice system is to hear all the facts so as to not convict a potentially innocent person.
Before these potential witnesses can give testimony, they must review the victim’s medical records.
However, because the Crown does not have copies of those records, the defence must first file what’s called an O’Connor application to try and get the records from Eastern Health and potentially other third parties, such as family doctors.
During Wednesday’s proceedings, Simmonds read from a recent judicial inquiry in Ontario in the case of disgraced children’s pathologist Dr. Charles Smith.
A number of people wrongfully convicted based on Smith’s testimony have since been acquitted, some after spending years in jail.
Simmonds said because shaken baby syndrome is complex, the court should consider the most up-to-date information available.
But Dymond raised the fact that the original defence strategy was to put into doubt who caused the injury to the baby, and just because Matchim had changed lawyers didn’t mean he should be given any additional rights.
Simmonds agreed, and was careful not to disparage Hurley’s approach. But he said if the new experts can present another plausible scenario for what happened to the baby, the court should consider it.
Crown prosecutor Phil LeFeuvre told the court that before he received new information from Simmonds — less than two days before — he was strongly opposed to reopening the case.
He said the new evidence is different than what was heard at trial, but is also highly technical.
LeFeuvre said he is unable to assess the documents on his own and will need time to have them evaluated.
He had no choice but to consent to the defence’s application for adjournment while it files its application, as he would not want to see a miscarriage of justice.
LeFeuvre asked Dymond to put strict timelines on the matter so it can be dealt with expeditiously.
Dymond granted the defence its application but also agreed with LeFeuvre that the matter can’t continue to drag on.
“I’m going to keep everyone’s feet tight to the fire,” he said.
The matter will be back in Supreme Court Nov. 18 for an update.
Simmonds told the court he may ask for a new bail hearing for Matchim, who remains in custody.