The Crown consented to the request for bail during a very brief hearing before Ontario Court of Appeal Justice Eileen Gillese, paving the way for Trotta to be released from the medium-security Fenbrook Institution in Gravenhurst, Ont. — near Toronto.

Trotta has been in prison since 1998 when he was convicted by a jury of killing his eight-month-old infant son Paulo.

Anisa Trotta, the boy’s mother, was also convicted of criminal negligence and sentenced to five years in prison.

“It has been torture,” said Anisa, who was at the courthouse with her lawyer on Wednesday to hear her husband would be released on $100,000 bail and allowed to stay at their home in Brampton, Ont.

Anisa has served her sentence, but the couple is appealing their convictions to the Supreme Court of Canada, which is scheduled to hear their case in October.

One of the key Crown witnesses at the 1998 trial of the couple was Dr. Charles Smith. The forensic pathologist testified Paolo suffered three skull fractures including one as recent as 10 minutes before his death in 1993, which could have been caused by a blow to the head.

The findings of Smith in the Trotta case were singled out in a recent review of his work headed by Dr. Barry McLellan, Chief Coroner of Ontario.

The review found problems with the conclusions of Smith in 20 criminal cases, which led to the province calling a public inquiry that will be headed by Justice Stephen Goudge.

The remains of Paolo were exhumed last year and the review found that there were no recent injuries to the infant as Smith concluded.

Anisa said outside court she is going to open some champagne once her husband comes home, but she couldn’t comment on the specifics of her case because of the upcoming Supreme Court hearing.

“This is a big day,” said lawyer Michael Lomer, who is representing Marco. “Right now my client wants more than anything else to go home and be with his wife.”

Ontario Attorney General Michael Bryant announced last week the Crown would not be opposing bail for Marcoa, as a result of the findings of the review.

The Crown however, vigorously and successfully fought an attack on Smith’s credibility in 2004, when the Ontario Court of Appeal upheld the convictions of Marco and his wife.

Lomer asked for records of 17 other criminal cases where Smith was involved and for the results of a 2001 internal review of the pathologist’s work by the Coroner’s office, conducted in consultation with the Ministry of the Attorney-General.

The defence lawyer’s request for the records was turned down by Justice David Doherty.

He noted that Crown attorney Lucy Cecchetto “forcefully argued” any attempt to question the objectivity of Smith should not be a part of the Trotta appeal unless there was specific evidence to “doubt the accuracy” of his medical opinions.

The Court of Appeal decision that upheld the convictions of the couple came one year after Superior Court Justice Brian Trafford found in another child death case that there was a “breach of duty” by the Coroner’s office in its 2001 internal review, commissioned by then Chief Coroner Jim Young.

No notes or files were kept in the review, which was conducted by three senior officials, including Deputy Chief Coroner Jim Young and Dr. McLellan.