"DR. SMITH’S TESTIMONY WAS ESSENTIAL TO BOTH ALLEGATIONS. HIS CLAIM THAT THE SCALP BRUISING HAD TO HAVE RESULTED FROM AN ASSAULT WAS WRONG. WITHOUT HIS INTERPRETATION OF THE BRUISE UNDER THE SCALP AND THE ASSOCIATED BLEEDING, THE CROWN COULD NOT LINK THE INJURY EITHER TO THE APPLICANT OR TO THE DEATH OF KASANDRA. HIS FAILURE TO ACKNOWLEDGE THAT THE PATHOLOGY LEFT NATURAL CAUSES OPEN AS A CAUSE OF DEATH IS NOW CHALLENGED. THE CROWN’S CASE WOULD NOW STILL INCLUDE THE APPLICANT’S STATEMENTS BUT, IN THEM, SHE ONLY DESCRIBED MINOR PHYSICAL CONTACT WITH KASANDRA THAT COULD NOT HAVE RESULTED IN ANY HARM TO HER, MUCH LESS DEATH. THE NEW EVIDENCE PROVIDES SCIENTIFIC NATURAL CAUSE ALTERNATIVES FOR WHY KASANDRA DIED."
AFFIDAVIT OF LAWYER ALISON CRAIG; FILED IN ONTARIO COURT OF APPEAL;
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Many insights into the wrongful conviction of Maria Shepherd - and the role played in it by Dr. Charles Randal Smith - can be gleaned from the affidavit filed in the Ontario Court of Appeal by Lawyer Alison Craig, an associate of Lockyer, Campbell, Posner, who, along with several other lawyers, did a superlative job of representing Ms. Shepherd and other victims of miscarriages of justice at the Goudge Inquiry; Because this affidavit is extremely lengthy I will be publishing selected sections:
Today's section; (Final section to be included in this series): The Effect of the Proposed Fresh Evidence:
"I am of the opinion that there is substantial merit in the proposed appeal. If an extension of time is granted, the appeal would be based on fresh evidence to be adduced under section 683(1)(d) of the Criminal Code. The focus of the fresh evidence would be the opinions of Dr. Whitwell and Dr. Pollanen, the explanation of the Applicant as to why she pled guilty at her trial in 1992, and further expert opinions that the Applicant will seek if she is granted an extension of time.
The Crown’s case at trial depended heavily on the testimony of Dr. Smith. To succeed, the prosecution had to prove two main allegations:
● that the Applicant had committed an act of assault against Kasandra on April 9th, 1991; and
● that this act had caused the brain injury – and the fatal swelling – which led to Kasandra’s death.
Dr. Smith’s testimony was essential to both allegations. His claim that the scalp bruising had to have resulted from an assault was wrong. Without his interpretation of the bruise under the scalp and the associated bleeding, the Crown could not link the injury either to the Applicant or to the death of Kasandra. His failure to acknowledge that the pathology left natural causes open as a cause of death is now challenged. The Crown’s case would now still include the Applicant’s statements but, in them, she only described minor physical contact with Kasandra that could not have resulted in any harm to her, much less death. The new evidence provides scientific natural cause alternatives for why Kasandra died.
Dr. Smith’s testimony decisively linked the injury under Kasandra’s scalp to the Applicant’s description of a sweeping motion toward her with the back of her hand. The linkage was the “overlay” of the Applicant’s wristwatch on the configuration of the bruise under her scalp. In this way, the injury itself was able to identify the person who had inflicted it. The opinions of Dr. Whitwell and Dr. Pollanen that this inference had no scientific foundation and was “misleading” and “pseudo-scientific” undermine the Crown’s assertion that the Applicant caused the bruise under Kasandra’s scalp. As well, Dr. Smith’s testimony that a household accident could not have caused such an injury, and its location was incompatible with a fall, is discredited by Dr. Whitwell.
The Applicant’s statements to the police and others did not constitute an admission by her that she used force on Kasandra that amounted to an unlawful assault. She described a non-violent correcting motion on a recalcitrant child, at a time when she had to assist her infant daughter. Her action did not cause Kasandra to fall or cry. If it was a push, as she has so often described it, it was no more than legitimate and lawful form of parental correction. Even a “hit”, depending on its force, could fall into this category. But the testimony of Dr. Smith put an entirely different face on what she had done. Dr. Smith translated her action into a blow of such magnitude that it left the imprint of her wristwatch under her scalp, and led to her death. The fresh evidence breaks the link between the Appellant and the bruising.
It is now known that Kasandra had a previous brain injury, that was detailed by physicians at the Hospital for Sick Children in the last hours of her life; it was detectable (though missed at the time) in x-rays taken at Peel Memorial Hospital during Kasandra’s admission in February of 1991; and its remnants were visible at autopsy. In February, Kasandra developed an accumulation of disturbing symptoms, potentially indicative of brain damage. They included repeated vomiting; lethargy and sleepiness; weight loss; and developmental regression. These symptoms were never cured, nor their cause diagnosed. But for a short abatement, they were continuous from February until her death in April. This history was removed by Dr. Smith as being related to her death; now the evidence suggests a possible correlation. This accords with commonsense; her symptoms, that carried on for a month of hospitalization, suggest an underlying cause of disease for her death.
The “status epilepticus” suffered by Kasandra diagnosed at the time of Kasandra’s death ,and noted by Dr. Whitwell and Dr. Pollanen, refers to a continuous series of seizures. This could have caused the fatal edema. The epilepsy may have been a natural disease process or consequent on trauma. But Dr. Smith’s opinions only allowed for it being a symptom, or consequence, of the significant blow that put her into a coma.
The Applicant’s affidavit explains how she came to enter a plea of guilty at her trial. The main factor was Dr. Smith’s opinions which she and her lawyer viewed as beyond challenge, coupled with her own emotional vulnerability resultant from the loss of custody of her four children with the prospect of possible permanent separation if convicted and sentenced following a contested trial. It is my opinion that there is an appreciable likelihood that this Court will accept the Applicant’s explanation on these points and conclude that the guilty plea can be set aside, and her conviction quashed.
In these circumstances, I believe it would be in the interests of justice to allow the Applicant to appeal her conviction, which was based on what is now known and acknowledged to be flawed pathology."
Harold Levy...hlevy15@gmail.com;
