Marco Trotta was set to leave prison within hours of the Ontario Appeal Court's approval of $100,000 bail, which the Crown did not contest.
“Torture. It's been torture,” said his wife Anisa Trotta, 35, who was also convicted in the death of her son.
“I've been blessed with a lot of strong friends who've helped us through this. They have been few and far between but I do have some true friends who have been there for us.”
His wife was found guilty of criminal negligence causing death and served a five-year sentence.
The convictions were based in part on the forensic evidence of Dr. Charles Smith. His forensic pathology is now the subject of a public inquiry after concerns, ranging from mild to serious, were raised about his findings in 20 of 45 child autopsies he performed after 1991.
Criminal convictions resulted in 12 of the 20 cases.
Two weeks ago, the Ontario government called a public inquiry into Dr. Smith's work, citing the review and the possibility that people were wrongfully convicted and imprisoned based on that work.
Mr. Trotta was the only person who remained behind bars in cases where Dr. Smith's testimony has been called into question.
Outside the Appeal Court, Anisa Trotta broke into a broad smile as she realized her husband would soon be free of the medium security Fenbrook Institution near Gravenhurst, Ont.
“I have champagne waiting,” she laughed. “First step on a long journey.”
Defence lawyer Michael Lomer said it's been hell for his client.
“He's serving a life sentence for the murder of his child — I can't tell you any more than that,” Mr. Lomer said minutes after winning the bail approval from Ontario's top court.
“Levels of suffering are like degrees in Dante's “Inferno.” How do you describe them if you're not there?”
Paulo was initially deemed to have died of natural causes, but more than a year later, Smith did a second autopsy after another of the Trotta children suffered a broken leg.
Dr. Smith then offered a new conclusion — that a skull fracture could have caused the child's death — a finding Mr. Lomer disputes based on a new forensic examination.
In October 2004, Ontario's Appeal Court upheld the convictions, saying the Crown had presented “overwhelming evidence” that Mr. Trotta had badly abused the infant.
Under his bail terms, Mr. Trotta will have to turn himself in on Oct. 11, the eve of his appeal hearing before the Supreme Court of Canada.
“We have a lot more information than we had at the time this appeal was argued,” said Mr. Lomer, adding he was “really pleased” an inquiry had been called.
“It's a real relief to have the true set of facts come out,” Mr. Lomer said.
“All of the cases involving Dr. Smith have taken a long time.”
In September 2005, William Mullins-Johnson of Sault Ste. Marie, Ont., was ordered released from prison on $125,000 bail after spending more than a dozen years behind bars for a rape and murder that may never have happened.
He too had been convicted after Dr. Smith testified against him.
Ontario's Attorney-General Michael Bryant has said the case against Mr. Mullins-Johnson “cannot stand.”