COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shepherd, 2016 ONCA 188

DATE: 20160307

DOCKET: C50446

Watt, Lauwers and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maria Shepherd

Appellant

James Lockyer and J. Thomas Wiley, for the appellant

Howard Leibovich, for the respondent

Heard and released orally: February 29, 2016

On appeal from the conviction entered on October 22, 1992 by Justice Kenneth A. Langdon of the Ontario Court (General Division), sitting without a jury.

ENDORSEMENT

[1] Over two decades ago, Maria Shepherd pleaded guilty to manslaughter in connection with the death of her three-year-old stepdaughter. She entered her plea shortly after her trial began. She was represented by counsel.

[2] When it was entered, Ms. Shepherd’s plea of guilty was informed, voluntary and unequivocal.

[3] Counsel at trial proposed a joint submission on the issue of sentence. The trial judge accepted the submission and sentenced Ms. Shepherd to imprisonment for a term of two years less one day to be followed by probation for three years on the statutory and some optional terms.

[4] Ms. Shepherd completed both the carceral and probationary terms of her sentence without incident.

A. The Background Facts

1. The Preliminary Events

[5] In the early part of 1991, the deceased’s health began to deteriorate. She lost about one-third of her body weight. Areas of bruising appeared on her face, head and back. Police and CAS authorities were notified. She spent a month in hospital before she was released into the care of her natural father and Ms. Shepherd, her stepmother. Health and CAS officials monitored her condition.

2. The 911 Call

[6] Later the same year, her condition worsened. She vomited frequently. She developed breathing problems. A 911 call was made. Paramedics found her unconscious. She was taken to a local hospital, then to the Hospital for Sick Children where she expired.

3. The Post-mortem

[7] Dr. Charles Smith conducted the post-mortem examination on the body of the deceased. He noticed a contusion on the underside of the deceased’s scalp at or towards the back of her head. He attributed the injury to a blow or blows to the back of her head. He associated the contusion with a subdural hemorrhage in the same region of the brain.

[8] Dr. Smith asked the police to search for a donut-shaped object that he considered had caused the injury. Police seized Ms. Shepherd’s watch. Dr. Smith overlaid photos of the watch and the contusion. For him, there was a match. He concluded that the deceased was the victim of a homicide. He certified the cause of death as cranial cerebral trauma.

4. The Guilty Plea

[9] The cause of death opinion by Dr. Smith was the linchpin of the case for the Crown. A privately retained local pathologist could not refute Dr. Smith’s claim that the mechanism of death was a backhand blow by Ms. Shepherd to the back of the deceased’s head, struck while Ms. Shepherd was wearing her watch on her wrist. It was this unlawful act upon which the trial Crown relied when Ms. Shepherd entered her plea of guilty.

5. The Pathology Review

[10] In early 2007, a commission of inquiry concluded that Dr. Smith had made serious and fundamental errors in about 20 pediatric autopsies he had conducted, or about which he had provided a consulting opinion.

[11] Among the cases of flawed pathology, was that of Maria Shepherd.

6. The Extension of Time

[12] In 2009, about sixteen and one-half years after Ms. Shepherd pleaded guilty to, and was sentenced for manslaughter in the death of her stepdaughter, a judge of this court granted Ms. Shepherd an extension of time within which to serve and file a notice of appeal against her conviction. She filed her notice of appeal that day.

B. The Appellate Proceedings

1. Setting Aside the Guilty Plea

[13] It is firmly established that this court has jurisdiction to set aside a guilty plea entered at first instance. This jurisdiction extends to proceedings in which the plea, on its face, is voluntary, informed and unequivocal and entered in proceedings in which the appellant has counsel. In these cases, we examine the trial record, as well as any additional material proffered by the parties, which in the interests of justice should be considered in assessing the validity of the plea: see, R. v. T.(R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514, at para. 12. The further material may explain the circumstances that led the plea of guilty and may demonstrate a miscarriage of justice has occurred: see, R. v. Kumar, 2011 ONCA 120, at para. 34.

[14] The justice system held out a powerful inducement to Maria Shepherd to change her plea to guilty of manslaughter. The evidence about cause and mechanism of death, as provided by Dr. Smith, pointed directly at her and at no one else. Efforts to locate a contrary opinion were pursued, but failed. Her conviction on the evidence assembled by the Crown approached near certainty.

[15] In pre-trial and during ongoing discussions, the trial Crown had indicated that she would be seeking a substantial penitentiary sentence in the event of conviction after trial. A penitentiary sentence might well have had implications for custody of Ms. Shepherd’s three children. She did not want to lose custody of them. She was three months pregnant with her fourth child. She faced the prospect of giving birth in the Prison for Women and losing custody of her newborn to the CAS immediately.

[16] On the other hand, the joint submission included recommendations for custody in a nearby correctional centre, minimum security, open family visits and the likelihood of early parole.

2. The Fresh Evidence

[17] The parties have assembled and tendered for admission an impressive array of expert evidence about the cause and mechanism of the deceased’s death. It is, in our view, in the interests of justice to receive this evidence, which we consider satisfies the conditions precedent articulated by the Supreme Court of Canada in Palmer. The evidence is relevant, not only to our assessment of the validity of the guilty plea, but also to the disposition we should make of this appeal.

[18] Among the experts whose evidence has been tendered on appeal, there is unanimity about several flaws in Dr. Smith’s evidence about cause and mechanism of death. They include:

i. the overlaid diagram of hemorrhage in the right occipital scalp is medically unsupportable and cannot be matched to Ms. Shepherd’s watch;

ii. no pathological determination can be made that this hemorrhage was caused by a fall, an accidental impact or an intentional impact;

iii. Dr. Smith’s opinion that a significant degree of force was necessary to cause this injury is unsupportable; and

iv. what Dr. Smith described as a subdural hemorrhage in the right occipital region is not a subdural hemorrhage, rather blood that pooled there during dissection.

[19] The fresh evidence we have decided that it is in the interests of justice to receive, has two implications. The first has to do with the validity of the plea of guilty and the second relates to our ultimate disposition for this appeal.

3. The Fresh Evidence and the Guilty Plea

[20] Maria Shepherd pleaded guilty on the basis of the cause and mechanism of death advanced by Dr. Charles Smith – a significant blow, indeed a fatal blow to the back of the head while wearing a watch. The fresh evidence has thoroughly discredited that mechanism and cause of death. As a result, the plea of guilty, in our view, can no longer be said to be informed. Nor can the conviction recorded on that basis be considered reasonable or supported by the evidence. There is no demonstrated nexus between Maria Shepherd’s conduct and her stepdaughter’s death. It follows that the plea of guilty entered and the conviction the trial judge recorded must be set aside.

4. The Fresh Evidence and the Disposition

[21] The experts take different views about what caused the deceased’s death. This uncertainty amongst the experts means that responsibility for that death cannot be brought home to Maria Shepherd. Crown counsel acknowledges that, in these circumstances, there is no reasonable prospect of conviction. The appropriate remedy is an acquittal.

C. Conclusion

[22] For these reasons, the appeal is allowed. The plea of guilty and conviction are set aside and an acquittal is entered.

“David Watt J.A.”

“P. Lauwers J.A.”

“G. Pardu J.A.”