Brenda Waudby moves on 16 years after Charles Smith debacle


Mon., Sept. 23, 2013

OMEMEE, Ont.—Jenna Mellor never had her hair cut. Her first came 15 years after she was murdered. Now several strands of her bright red hair rest in two lockets, one around her mother’s neck and the other around her sister’s.

Last summer, Brenda Waudby watched as funeral director Patrick Benson dug up her tiny 21-month-old daughter’s grave. Waudby just wanted to make her daughter whole. The year before, she discovered the coroner’s office and Hospital for Sick Children still had Jenna’s rib cage, even though she was buried in 1997. She was furious.

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“We were able to have a visit with her ribs,” Waudby says. “It sounds really odd, but it was comforting.”

Benson clipped off a lock of hair — it hadn’t decomposed — and gave the women the locket with the hair inside.

“Now she’s with us wherever we go,” Waudby says.

It was Jenna’s ribs, a typo and a veil of secrecy over the true killer’s confession that kept Waudby on the province’s registry as a child abuser until 2012. She was one of the many victims of disgraced pathologist Charles Smith, whose botched autopsies led to the conviction of 13 people.

And she was an easy target for police because she had a cocaine addiction prior to Jenna’s death.

The stress last summer was overwhelming. In addition to putting her dead daughter back together, she was dealing with yet another court date, this time to be exonerated for abusing Jenna. All this, while in the middle of exams at Fleming College where she was in a dual-diploma law clerk and paralegal program.

Now, 16 years after she was wrongfully accused of murdering her toddler, she is a college graduate looking for work in the legal world.

“I want to fight for the ones that can’t fight for themselves, because they’ve been beaten down or broke down so far they get tired of trying,” Waudby, 48, says.

Her journey has been unfathomable and it stems from faulty medical evidence from Smith.

One cold night in January 1997, Waudby left Jenna with a 14-year-old babysitter. When she returned, the babysitter was gone and the house silent. Jenna was dead, her head beaten severely and more than a

Police charged her with murder and child abuse, based on Smith’s declaration Jenna had been beaten for months prior to her death. Fearing she would lose custody of her two other children with a murder charge hanging over her, Waudby pleaded guilty to child abuse in return for the Crown dropping the murder charge — something the Crown said it never offered.

Two years later, the Crown stayed the murder charge after uncovering problems with Smith’s medical evidence. But in that time, she lost her daughter to child services on several occasions for more than two years.

It wasn’t until 2005 that police finally found Jenna’s killer: the 14-year-old boy who babysat her that January night. The boy, referred to in court documents as J.D. who cannot be named under the Youth Criminal Justice Act, confessed to the murder to an undercover officer.

J.D. admitted to beating and sexually assaulting Jenna and pleaded guilty to manslaughter in December 2006. The court sentenced him to 22 months in prison.

Waudby and her lawyer fought to get her exonerated from the child abuse conviction.

The Crown insisted Jenna had old rib injuries, indicative of chronic abuse before she died.

Their insistence relied on a transcript of the babysitter’s confession that although he made “good solid jabs” to the girl’s stomach, his punches “wouldn’t have been enough force to break ribs.” The Crown’s conclusion: Waudby beat her toddler.

But Waudby and her dogged lawyer, Julie Kirkpatrick, knew that wasn’t true. But they couldn’t get their hands on the tape of the confession until she filed an appeal and received the evidence in disclosure.

J.D. actually said the exact opposite: his blows “would have had enough force to break ribs.” The court reporter had reported it incorrectly.

Waudby’s appeal was finally heard last June, Justice Michelle Fuerst overturned the child abuse conviction, and Crown attorney Alison Wheeler offered a “deep and sincere” apology for the miscarriage of justice.

In addition to the typo, Smith had said the rib injuries were chronic in nature. Two other pathologists completely disagreed with his findings.

They concluded there “was no forensic evidence that Jenna was chronically abused by her mother, Brenda Waudby.”

In 2008, a coroner’s inquest examined 45 autopsies Smith conducted that he concluded were either homicide or suspicious.

The inquest found 20 of Smith’s autopsies made questionable conclusions. That led to 13 criminal convictions, including Waudby. In 2010, the province awardedWaudby and 12 other victims of Smith’s errors up to $250,000 in compensation.

But nobody listened to Waudby, who publicly questioned Smith’s shoddy findings. It took 10 years for someone to hear her.

Brenda Waudby sits at a picnic table outside Bill’s Pizza House in Omemee, about a 20-minute drive west of Peterborough. She talks about her life over the past 16 years as her daughter, Justine Traynor, sits beside her playing with her iPhone.

Waudby moved from the “rough part of Peterborough” to the one-streetlight hamlet two years ago. The pair lives in a bungalow with Waudby’s 14-year-old son, two dogs, a “skittish shepherd mix” and a “carefree chocolate lab that will go home with anyone” and three cats.

“Too many kids at home,” Waudby says as she smiles and looks at her daughter. “I have six kids at home — I’m including the pets.”

“No, you have seven,” Justine says as an old Pontiac Fiero rolls in, country music blaring.

“You’re supposed to be an adult,” Waudby says, laughing, as Justine rolls her eyes and returns to her phone.

They were tired of the sirens in Peterborough and enjoy the peaceful Omemee. “You can actually hear crickets at night.”

The two went to school together in the fall of 2011. Waudby finished last spring and is in the throes of a job search in a tough market. She was interviewed for a job with legal aid in Peterborough, but hasn’t heard back.

“It takes its toll and at my age trying to get a job is not easy in any market,” the 48-year-old says. “I’m competing against young students that just came out of school like me, but a lawyer will take a student that they have 30 years they can invest in, where I wouldn’t have that.”

“It’s unfortunate, but I keep trying, keep putting my resume out there. It’s all you can do.”

Waudby completed a work placement with Nathan Gotlieb in Toronto last summer, where she helped out with family law. She helped him with his family law clients.

“She was really diligent, prompt — God she was early all the time — and really reliable,” Gotlieb says.

But the experience left Waudby drained.

“Family law is really emotional,” she says. “And a lot of it I could identify with, which makes it very difficult.”

Instead, she wants to work in criminal law, as she has 16 years of knowledge gained from her own unfathomable case.

Justine went to school for three semesters, but dropped out of her child social work program because she lost interest.

“I’d like to be a behavioural analyst,” Justine says. “I don’t know, maybe I watch too much Criminal Minds, but I like the idea of helping track down people who cause a lot of crime and pain.”

The two are drawn to crime — especially the horrific ones — because of what they’ve been through.

“Did you hear about the baby being killed and dropped in the dumpster?” Justine asks. “Or that guy who was hit over the head with a brick and stabbed for that video game Grand Theft Auto?”

And the struggles remain. Justine deals with depression, although she’s kept it at bay for a year now. They both go to the same counsellor, although Waudby hasn’t been lately.

“I have two children that very much depend on me,” Waudby says. “Not for food, just that I’ll always be there for them and I always will be. And that’s what keeps me going.”

Justine wants to move on with her life and leave the nest. Waudby won’t let her until she gets a job.

“Hopefully, one day, I can have my own office and you can come work for me,” Waudby says.

“I ain’t living with you for the rest of my life and working for you for the rest of my life,” Justine says.

The family will never be whole again. But with Jenna resting in one piece and her hair in those lockets, she will never be far from their hearts.