



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. Shepherds 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 deceaseds 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 deceaseds 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. Shepherds 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. Smiths
    claim that the mechanism of death was a backhand blow by Ms. Shepherd to the
    back of the deceaseds 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), 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. Shepherds 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 deceaseds 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. Smiths 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. Shepherds 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. Smiths 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 Shepherds conduct and her stepdaughters
    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 deceaseds 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.


