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The Burlington Post


"Decision in Nelles case a defining moment"

David Allan Harris B.A., LL.B., Published in the Burlington Post on March 7, 2001

As I reported in my last column, the Ontario Criminal Lawyers Association recently honoured Austin Cooper, presenting him with the G. Arthur Martin Criminal Justice Award. This award was given in recognition of Cooper's many years of service, both to his clients and to the public.

Susan Nelles was one of those clients. She was charged with four counts of first degree murder in connection with the death of four babies who were patients under her care on the cardiac ward at the Hospital for Sick Children and who died from poisoning alleged to have been caused by the deliberate administration of massive overdoses of the drug digoxin.

Judge David Vanek presided over her preliminary hearing, which occupied forty-one days of evidence from over one hundred witnesses and four days of argument by counsel.

During the preliminary hearing, Crown counsel announced that there were not just four, but 24, babies who had died on the cardiac ward in the same time frame, and in suspiciously similar circumstances. Those circumstances surrounding the twenty additional deaths were admitted as "similar fact evidence"' for purposes of the preliminary inquiry.

In return, Cooper prepared a chart and with the consent of the Crown, filed it as an exhibit. The chart contained a list of the nurses who were on duty on each of the days when the 24 babies died. This chart disclosed that Nelles was on duty on most but not all of the days when babies died and that another nurse was on duty on all of the days when babies had died. Nelles was not, however, on duty on the day of the death of one of the four babies included in the charges of murder laid against her. This was critical since both the Crown and the defence assumed that one person was responsible for killing all four babies. If Nelles did not kill one, it followed that she could hardly be found guilty of killing the others.

In the end Judge Vanek found that the evidence did not reach the threshold required to justify committal for trial and he directed that Susan Nelles be discharged on all four charges of murder. Following this decision, the Government of Ontario appointed a Royal Commission of Inquiry under Mr. Justice Grange of the Ontario Court of Appeal to examine the circumstances the extraordinary number of deaths at the Hospital.

These hearings took well over a year to complete. At the conclusion, the Commissioner's report contained statements expressly agreeing with Judge Vanek's decision in the preliminary hearing and generally approving of his handling of the charges against Susan Nelles.

In his memoirs, Judge Vanek wrote " A defining moment, in my opinion, is an occasion when one is called upon to bring the full force of one's life-experience in the solution of a difficult problem. My decision in the Nelles case was a defining moment in my career as a judge." The case could also be called a defining moment in Austin Cooper's career as a lawyer. The case of Ken Murray would also call upon the full force of Cooper's life experience in the solution of a difficult problem. We will explore that more fully in my next column. At this time, however, it is with sadness that I write that G. Arthur Martin, after whom the G. Arthur Martin Criminal Justice Award was named, passed away last week. G. Arthur Martin showed his greatness as both a criminal lawyer and as a judge of the Ontario Court of Appeal. The Martin Report brought the administration of justice in this province into the modern era. We all suffer a great loss at his passing.