Her Majesty the Queen v. Shepherd [Indexed as: R. v. Shepherd]
54 O.R. (3d) 199
[2001] O.J. No. 1490
Docket No. C24641
Court of Appeal for Ontario,
Rosenberg and Moldaver JJ.A. and Simmons J. (ad hoc)
April 23, 2001**
** Note: This judgment was recently brought to the attention of the editors.
- Application for leave to appeal to the Supreme Court of Canada was dismissed February 21, 2002 (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28669. S.C.C. Bulletin, 2002, p. 277.
Criminal law--Charge to jury--Similar fact evidence--Accused charged with first-degree murder in shaking death of baby --Accused admitted shaking baby but claimed innocent intention--Crown adduced evidence that baby may have been shaken on prior occasion--Trial judge did not adequately relate similar fact evidence to intent elements of murder under s. 229(a)(ii) of Code--Accused's appeal from conviction allowed --Criminal Code, R.S.C. 1985, c. C-46, s. 229(a)(ii).
The accused was charged with the first-degree murder of his five-and-one-half-month-old stepdaughter. He claimed that he was bathing the baby in the kitchen sink, that he left her alone briefly and returned to find her under the water and unconscious, and that he shook her in an attempt to revive her. The charge of first-degree murder was based upon the theory that the killing was committed in the course of a sexual assault. A bruise was found at autopsy around the child's anus.
To rebut the accused's defence and support the Crown's theory that the accused had the requisite intent for murder, the Crown relied upon similar fact evidence in the form of expert evidence of a prior shaking incident. The pathologist who conducted the autopsy testified that she found evidence of a previous injury to the brain that may have been caused by shaking the child. This injury occurred three to ten days prior to the death. H, an expert on Shaken Baby Syndrome who testified for the Crown, testified that the old injury resulted from extreme