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Charges dropped against twice-accused Hamilton babysitter

Twice accused Hamilton babysitter walks free
WATCH ABOVE: A Hamilton babysitter who was charged with assaulting a newborn in her care is free for the second time. The baby girl has now recovered from four broken bones but this isn't the first time this babysitter has faced charges because of allegations of incidents that happened when she was babysitting. Farah Nasser has more.

Hamilton babysitter Shelly Kuzyk left court free for the second time on Friday in relation to a case involving a child allegedly being hurt in her care.

This case involved a seven-week-old baby girl who was crying uncontrollably and her mother didn’t know why in April 2017.

Amy, who can’t be identified due to a publication ban, noticed her daughter’s leg was swelling and called Kuzyk, who had babysat the child on the Friday of the Easter long weekend in 2017.

READ MORE: Exclusive: Ontario mother ‘in hell’ after babysitter charged for breaking infant’s leg

“I said ‘It looks swollen, what happened?’” Amy told Global News. “She just said, ‘I don’t know, it looked fine.’”

But her child was far from fine. On Sunday, her daughter still wasn’t herself so Amy rushed her crying baby to McMaster Children’s Hospital in Hamilton.

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Her child had four broken bones in her right ankle. Children’s Aid Society workers soon arrived at the hospital. So did the police.

“The doctors were basically yelling at me because I had no idea she was injured like that,” Amy said.

Amy was separated from her infant daughter who was injured and her two older children for seven weeks while police investigated. Forty-five-year-old Kuzyk, was charged with aggravated assault.

On Friday, the assault charges against Kuzyk were dropped. Her lawyer, Asgar Manek, said the crown could not prove the injuries happened while the baby was in Kuzyk’s care and not in the approximately 48 hours that went by before she was taken to hospital.

VIDEO: An Ontario mother speaks out after babysitter charged with assaulting her 7-week-old baby. (November 2017)

Ontario mother speaks out after babysitter charged with assaulting 7-week-old baby
Ontario mother speaks out after babysitter charged with assaulting 7-week-old baby

Kuzyk was released on a peace bond. For three years, the 46-year-old cannot be in a caregiving role for, or alone with, anyone under 14 years old and she is banned from contacting Amy or her family.

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“For three years?” Amy said. “It should be a lifetime of not watching children, it’s very disappointing”

Amy’s daughter has fully recovered but she’s fearful of seeing Kuzyk’s name in the news again.

Manek released a statement on behalf of Kuzyk which said she felt “vindicated.”

“I believe I’ve been vindicated because of the fact the charge has been dropped. I am happy and relieved I can finally move on with my life. Thank you,” the statement said.

WATCH: Ontario mother speaks about the death of her child who was killed in 1997

Ontario mother speaks about the death of her child who was killed in 1997
Ontario mother speaks about the death of her child who was killed in 1997

This wasn’t the first time Kuzyk has been arrested. She was charged in 1997 with second-degree murder following the death of 15-month-old Tristin Tooke – her godson.

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Kuzyk had been a close childhood friend of Tristin’s mother, Rosemarie Simon, for years and was one of the first people to see Tristin in hospital after he was born.

“I’ve known [Kuzyk] since we were in diapers, like we grew up together,” Simon told Global News in November 2017. “Her parents were wonderful and they still are wonderful people and I feel sorry for them that their daughter turned out the way that she did.”

In January 1997, Simon and the father Rob Tooke say they received a panicked call from Kuzyk, saying she had given Tristin a bath at 3 a.m. and he had fallen from her waterbed.

“I’m trying to be strong and to do what I need to do for him, but even after 20 years it’s very hard to talk about,” Rob Tooke told Global News.

WATCH: ‘Incompetent’ pathologist ruined countless lives, but why was Charles Smith never charged?

‘Incompetent’ pathologist ruined countless lives, but why was Charles Smith never charged?
‘Incompetent’ pathologist ruined countless lives, but why was Charles Smith never charged?

The parents rushed to the hospital and discovered that their child had two skull fractures, multiple bruises, and loosened teeth.

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“How does a baby fall from a water bed this high onto the floor and get multiple skull fractures? The back of his head was smashed in, his penis was bruised, like somebody was pinching it,” Tooke said.

Tristin died roughly 16 hours after being admitted to hospital.

Simon remembers only taking a few steps after leaving the hospital before crumpling to the ground.

“I just remember leaving and running and to be honest with you, I think I was running for the highway cause I wanted to jump out in front of a car,” Simon said, holding back tears.

“But I stopped, and I just fell against the wall and just sat there and cried,” she said. “Everything goes blurry after that as you can imagine.”

Kuzyk was later charged with second-degree murder after Tristin died of his injuries.
Hamilton police Staff Sgt. Steve Hrab was leading the investigation at the time and told Global News that “blunt force” was applied to Tristin.

“One of the doctors had said that it would have been more likely for Tristin to have fallen off a balcony or gotten into a car accident than – and sustain those injuries – than falling off the waterbed,” Simon said.

Kuzyk was found not guilty in February 1999. But Hrab said he’s not surprised to see her name in the news again.

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“I thought we’d be hearing from her earlier, or about her earlier,” he said.

Testimony from Dr. Charles Smith

One of the reasons Kuzyk was acquitted in Tristin’s case was the testimony of Dr. Charles Smith, a now discredited pediatric forensic pathologist. Unlike the other pathologists who testified, Smith told the jury Tristin’s injuries could have happened before the infant was in Kuzyk’s care.

Smith claimed there was no exact science to determine what time the injuries could have been inflicted.

“I along with the investigators wrote a letter to the chief coroner at the time saying that he should review Dr. Smith and his credentials and his reliability in court because we were just flummoxed with his evidence at the time,” Hrab told Global News in November 2017.

Smith’s fall from grace began in 2003 after serious problems were discovered in his work. An inquiry in 2008 found Smith “actively misled” his superiors and “made false and misleading statements” in court. It also noted that he “lacked the requisite training and qualifications” to work as a pediatric forensic pathologist.

The findings from the disgraced pathologist had helped convict at least 14 people, many of whom spent years in prison and had their children removed. The Ontario government financially compensated many of the wrongfully convicted and their families and Smith would later be stripped of his medical licence.

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“If there was a case, the Crown had the opportunity to try and reopen the case and seek leave to try the case again, that was never done so as far as I’m concerned, not having taken any steps, that matter should end,” said lawyer Asgar Manek, who is currently representing Kuzyk on her current charge. He said his client intends to plead not guilty.
“They pretty much sent me a letter stating that the case involving Tristin’s case did not meet the requirements and that they would not be moving forward. I believe they were more focused on getting people who were charged and guilty out of jail.”

WATCH: Ontario mother speaks out after babysitter charged with assaulting 7-week-old baby (November 2017)

Ontario mother speaks out after babysitter charged with assaulting 7-week-old baby
Ontario mother speaks out after babysitter charged with assaulting 7-week-old baby

Amy’s daughter has fully recovered,  but the Hamilton mother is warning other parents to take a close look at who is watching their children.

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“You just have to hold your children closer, my children are everything to me,” she said. “You can’t trust anybody now a days. If [people] are having their neighbours watch their kid, maybe take a closer look like just to be safe.”

Simon says she’s still haunted by the death of her little boy.

“I’m very thankful that her baby is still alive and that she’ll get to see her grow up because I’ll never get to see my son and it’s very difficult,” she said. “It’s very hard to watch and see all my friends with their kids. I was too afraid to have children after Tristin died so I didn’t even get to give the love I had to a child.”

With files from Andrew Russell