"Mr. Wiley acknowledged the facts as substantially correct, and a conviction was registered. The Crown further suggested that Dr. Smith had, at some point, added the possibility of a shaking injury to his opinion. The defence made no admission that shaking had ever occurred."
Affidavit of lawyer Alison Craig filed in the 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: The Applicant’s Plea:
"The Applicant’s trial was scheduled to commence on September 28, 1992. On that date, she was arraigned, elected trial by judge alone, and pled not guilty. On October 1, 1992 6, the Applicant appeared before Mr. Justice Langdon of the Ontario Court (General Division), was re-arraigned, and pled guilty to manslaughter. It seems that no facts were read in that day to support the plea.
On October 22, 1992 7, the plea proceedings continued and the facts substantiating the plea were read into the record. Dr. Smith’s findings were paramount in the Crown’s recitation of the cause of Kasandra’s death and were described by her as follows:
Dr. Smith’s examination revealed no evidence if disease, and that apart from Kasandra’s brain, all organs appeared normal. He also observed that there were no external marks of violence to her head. However, once her scalp had been retracted, Dr. Smith observed on the inside of the scalp what he describes as a distinct bruise or hemorrhage in the soft tissue to the right of the mid-line. He describes it as a ring of hemorrhage with a pale central core, almost a square configuration with slightly rounded corners. As well, he observed subdural and subarachnoid hemorrhage, that Kasandra’s brain was significantly swollen. He further observed that there was optic nerve hemorrhage, retinal hemorrhage in both eyes and that both eyes had retinal detachment. This latter was based on opthalmologists who had examined Kasandra while she was still attached to the respirator.
As a result of Dr. Smith’s examination and review of the clinical and medical data, Dr. Smith formed the opinion that… the above described injuries were as a result of non-accidental injury.
Further, during his examination of the brain he observed evidence of what he calls “old hemorrhaging” in various parts of Kasandra’s brain as well as in the optic nerve area. However, Dr. Smith was not able to form an opinion as to whether that previous bleeding, which was evidenced by what he described as traces of iron deposit, which is a by-product of blood, was a result of an accidental or non-accidental injury. Neither was he able to indicate whether or not it was as a result of one cause or separate causes.
However, Dr. Smith was able to give the opinion that the old injury or injuries did not in any way contribute to Kasandra’s death on April the 11 th .
The cause of death in Kasandra was called cranial cerebral trauma. Dr. Smith formed the opinion that the cause of death was as a result of blunt head trauma, and that there was evidence of at least one blow or force of what he described as “substantial or major or significant force”.
The Applicant’s April 24, 1991 statement to police was filed as an exhibit at the proceedings. Her lawyer, Tom Wiley, advised the Court that he was “satisfied [the statement] reflects the conversation at the time of the statement”. The Crown further told the Court:
It was in that statement that… the accused admitted that during the afternoon of April the 9th of 1991, that she had hit Kasandra in the back of the head with her left hand while wearing her wristwatch.
The accused was arrested at that time, and her watch seized. The watch was examined and compared – that is, the watch face – compared to the bruise or hemorrhaging of her scalp, and Dr. Smith formed the opinion that that watch face was consistent with having caused the bruise or the hemorrhage on the inside of the scalp. And, further, in Dr. Smith’s opinion, that the cause of death was occasioned by at least one blow of substantial, major or significant force. That if the arm was swung in a forceful manner, like a tennis ra c quet swing, that is, a backhand manner, that that was a possible explanation for that head injury.
The accused in her statements to the police indicated that on the afternoon of April the 9 th or 1991 that she had been doing laundry while Kasandra and her approximately one-year-old daughter had been playing in the master bedroom, that as she came upstairs she heard a thud on the floor and went in to see her one-year-old crying, and it appeared that she had fallen off of the bed. She told the police that she asked Kasandra why she had let her sister fall off the bed, and Kasandra had said ‘because I did’. She asked again, and Kasandra replied ‘because I did’.
She told the police that by this time the one-year-old was in a frenzy, as she described it, and she was angry. She told the police that she tried to explain to Kasandra, but Kasandra was not listening, that she looked at her with a sideways look, what she described as an ‘I hate you’ look, that she then just sat and watched television.
She then asked Kasandra to get a wet wipe, and Kasandra, she said, looked at her again with an “I hate you” kind of look, and she moved over. She indicated to the police that she, that is the accused, asked Kasandra again to get a wet wipe. At this point the baby, who was about a month old, started crying. Natasha was still in a frenzy, as she describes it, and that she was so angry with Kasandra that she hit her in the back of the head with her left hand. She told police that she was going for her neck area, and that she didn’t think that she had hit her that hard.
She indicated that when she hit her with her – or backhanded her with her left hand, that her watch hit her in the back of the head. And she showed the police the watch at that time. She told the police that she did not think she had hit her that hard, that Kasandra had not fallen, she hadn’t cried. She also indicated to the police that in addition to asking for the wet wipe that she had also asked Kasandra to get the soother for the baby who was crying. It was after that point that she hit Kasandra when she didn’t do that.
Mr. Wiley acknowledged the facts as substantially correct, and a conviction was registered. The Crown further suggested that Dr. Smith had, at some point, added the possibility of a shaking injury to his opinion. The defence made no admission that shaking had ever occurred. A joint recommendation for a sentence of two years less a day in jail was proposed by both parties. Dr. Ruth Bray, the Applicant’s psychologist, provided viva voce evidence related to the availability of institutional programming at Vanier Institution, and testified she felt that the Applicant had a “very low probability” of causing future harm to her children. She put it this way in her report:
There is no evidence to suspect that the children of Ashley and Maria have received any but exemplary care. It is realistic to expect that the disruption caused by Kasandra’s death and subsequent events will dictate on-going supervision and professional support (most likely through the Children’s Aid).
My understanding is that despite the anguish Maria expresses around the death of Kasandra and the difficulties she has had in grasping the full implication of what has occurred, Maria is more than prepared to accept responsibility and to not only follow instructions as to ways in which to ensure the safety of all of the children but also intends to seek specific assistance in such areas as anger control, child management and marital communication.
Mr. Justice Langdon accepted the joint submission. In his Reasons for Sentence, he described Kasandra’s long-standing and puzzling illness, and continued:
She was vomiting constantly, losing weight, not eating, and adding all that to the burden that [Maria Shepherd] bore, one can understand a momentary lapse caused by the sheer frustration of her predicament. I don’t mean to excuse what she did. The blow was plainly excessive, but it also bears mentioning that [she] caused the death of one child out of her frustration arising from the care of another. She came upstairs and found the infant had fallen off the bed and, perhaps, hurt itself. Now, what was unrealistic, of course, was that a three-year-old had been left, I don’t say, “in charge”, but had been left there alone with the infant. But, it was her concern for one child and her accumulated frustration that led to the blow that unfortunately killed the other child.
The Applicant was sentenced to two years less a day in jail, and three years of probation. One of the conditions of her probation was to work with the Children’s Aid Society in the case management of her children. The Warrant of Committal included the following remarks of Mr. Justice Langdon:
1. That the accused serve her sentence at Vanier Institute .
2. That the accused is an appropriate candidate for a minimum security setting .
3. That the accused is likely to make productive use of programs especially
a. Anger Management
b. Life Skills Training
c. Parenting
d. Examination of self and interpersonal relationship;
4. The accused is a good candidate for early parole;
5. The accused is permitted to have open access family visits as soon as possible.
The Applicant gave birth to her fourth child, Chanel, on March 31, 1993, while in custody. On June 21, 1993, she was granted parole. After her release, she sought to regain custody of her children, and was awarded their full custody in 1995. They have been with her ever since. Shortly after her release she began work as a paralegal, and now works as a manager at a retail clothing chain. With the exception of brief separations from Mr. Shepherd in 2005 and 2007, they have remained together since Kasandra’s death, and now live with their daughters Natasha and Chanel at their home in Brampton, Ontario. Jordon and Chelsea now live on their own."
Harold Levy...hlevy15@gmail.com;
