"I STILL DO NOT KNOW WHAT CAUSED KASANDRA’S DEATH. I KNOW THAT HER DEATH MAY HAVE RESULTED FROM EVENTS BEFORE APRIL 9, 1991, INCLUDING THE POSSIBILITY OF EPILEPTIC SEIZURES, OR AN EARLIER INJURY TO HER BRAIN THAT NO ONE KNEW ABOUT. NEITHER OF THESE POSSIBILITIES HAD BEEN RAISED WITH ME BY MR. WILEY, OR ANYONE ELSE, AS FEASIBLE BEFORE I PLED GUILTY. I NOW KNOW THAT THERE IS NO SCIENTIFIC EVIDENCE THAT I INJURED KASANDRA WHEN I PUSHED HER OR THAT MY WRISTWATCH LEFT A BRUISE ON THE UNDERSIDE OF HER SCALP. DR. SMITH’S TESTIMONY IN THESE REGARDS HAD A HUGE EFFECT ON THE LAWYERS REPRESENTING ME AND WAS A CRITICAL FACTOR IN MY DECISION TO PLEAD GUILTY TO MANSLAUGHTER. I HOPE THAT I CAN NOW PROVE THAT I DID NOT ASSAULT OR ABUSE KASANDRA AND DID NOT CAUSE HER DEATH. I WOULD NEVER HAVE PLED GUILTY IF I KNEW THEN WHAT I KNOW NOW ABOUT DR. SMITH AND KASANDRA’S DEATH."
AFFIDAVIT OF MARIA SHEPHERD: ONTARIO COURT OF APPEAL;
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Maria Shepherd's affidavit is a moving, if not disturbing, document that was filed recently in the Ontario Court of Appeal.
It reads as follows:
I, MARIA SHEPHERD...hereby make oath and say as follows:
1. On October 22, 1992, I was convicted of manslaughter in the death of my step-daughter, Kasandra, who died when she was three years old. I was sentenced to two years less a day in prison. This affidavit describes the events leading up to Kasandra’s death, and why I eventually decided to plead guilty. I do not believe I caused Kasandra’s death, and have spent more than fifteen years mourning her loss and coming to terms with my decision to plead guilty to something that I always believed I did not do.
2. I was born on August 20, 1969 in Manila, Philippines. I am now 39 years old. I became a Canadian citizen in 1975 at the age of 6. My father, Ramon Crespo, and my mother, Marie, are now 75 years of age. They have been married for 55 years. My father was a precious metals consultant, and my mother worked for the Canadian Imperial Bank of Commerce and Sears Canada. I have a grade 9 education, having left school at age 14.
3. I lived with my parents until I became pregnant with my eldest son, Jordan. At first I lived with friends, and then found my own apartment in Rexdale. Jordan was born on July 23, 1986, when I was 16 years of age. In 1987, Jordan and I moved back home with my parents due to my financial circumstances.
4. I now live...with my husband Ashley and two of our children, Natasha (19) and Chanel (16). My two other children, Jordan (22) and Chelsea (18), live on their own. I work as a store manager for Y.M. Inc, a Canadian clothing retailer. My husband is a self-employed process server.
Kasandra’s Life Before April 9, 1991:
5. Kasandra’s natural parents, Amanda Hislop and Ashley Shepherd, both of whom I knew well, were in a common-law relationship. Kasandra was born on December 15, 1987. I was at the hospital for her birth. She would be 21 today if she were still alive.
6. Ashley and Amanda separated in June, 1988. Sometime after that he and I began to date. In November, 1988, I moved into Ashley’s home. We were married on August 5, 1989. Kasandra was still with her mother, and Ashley had access rights. In 1989, Ashley decided to seek full custody of Kasandra. We retained a lawyer, began the legal process, and in November, 1989, we were granted interim custody. Her mother was given substantial access rights. By that time, my financial situation had improved and my son Jordan was living with us as well.
7. I still remember being surprised at how smart Kasandra was for her age. We enrolled her at the Tiny Tim Developmental School with Jordan. I quickly grew to love Kasandra as my own daughter, and she bonded really well with Jordan. Kasandra’s mother continued to have regular access to Kasandra. She made several reports to the Children’s Aid Society and the police alleging that Kasandra was being abused by Ashley and myself. Her complaints were not sustained by Children’s Aid or the police. We also made complaints about the way she and her new partner treated Kasandra. These complaints were also considered to be unfounded by the authorities. I was very protective of Kasandra. I cooperated with the authorities when they made inquiries about Kasandra and I made sure she was regularly seen by our family physician, Dr. Chiang.
8. On February 14, 1990, my daughter Natasha was born. My parents then purchased a new home in Brampton. In January, 1991, Ashley, Jordan, Kasandra, Natasha and I moved into their new home. We had to withdraw Kasandra from Tiny Tim for financial reasons. On February 27, 1991, I gave birth to my own third child, a second daughter, Chelsea.
9. In January, 1991, Kasandra started to get sick. It began with symptoms of the stomach flu. She lost weight, as much as 12 pounds. I took her to see Dr. Chiang who thought she might have a blood disorder. I took her for blood tests. That same evening (February 11, 1991), when she did not get better, Dr. Chiang, our family doctor, suggested that I take her to the hospital. I accepted his advice and took her to Peel Memorial Hospital. She was put on intravenous drip and remained hospitalized there for four weeks. The police came to the hospital to inquire about Kasandra’s condition and I spoke to them. Doctors could not diagnose her illness. Initially they diagnosed her as having gastroenteritis and dehydration. The doctors felt that her frequent vomiting might be due to psychological stress arising from her parents’ separation and the custody dispute. Her condition improved somewhat.
10. The CAS visited our house prior to Kasandra’s release from hospital and concluded that she should return home to live with me and Ashley. On March 6, 1991, the doctors, nurses and social workers at the hospital held a case conference about Kasandra’s condition. They decided to allow her to return home and her progress was to be monitored at home by a nurse and a worker from the Children’s Aid Society. On March 8, 1991, Kasandra was discharged from the hospital and we brought her home.
11. After her release from hospital, Kasandra seemed to be getting better. Her mother continued to have regular access. Then, after two weeks, Kasandra started vomiting again. It got to the point that she was vomiting after almost every meal. Ashley and I were extremely concerned and could not understand how so many tests during her one month hospitalization at Peel Memorial Hospital had failed to result in a diagnosis. Dr. Chiang thought her vomiting was caused by “emotional bruising”. We also noticed that Kasandra would often lose her balance, and trip and fall. It was heartbreaking to see her constant suffering. Meanwhile, the Children’s Aid were continuing to monitor her progress.
The Events of April 9, 1991:
12. On April 9, 1991, the day started off uneventfully. Ashley left for work around 8:30 a.m., leaving me at home with Kasandra, Chelsea and Natasha and my older brother, Rene. Jordan was staying with his biological father for a few days. I remember Kasandra took a long time to eat her breakfast, but seemed alright after that, and she played with Natasha for much of the morning. Ashley came home for lunch, but did not stay long. Rene came and went throughout the day. I spoke with Dr. Chiang by phone about Kasandra in the afternoon, and he suggested that we send her to live with her mother for a while to see if her symptoms would get any better. This made sense to me. I called Amanda, and we made arrangements for Kasandra to move to her house the following weekend.
13. I had plans to go out and see my mother that evening, so I began to get ready in my bedroom. Kasandra was with me. She suddenly became sick and vomited on the carpet. Her shoulders were twitching and her eyes were rolled back in her head. She vomited again. She said she was tired and wanted to lie down, so I let her sleep on my bed. My brother and his friends came over to visit. When Kasandra woke up she seemed better, so I gave her a shower and dressed her.
14. At one point in the afternoon, I heard a thump upstairs. I went up and found Natasha lying on the floor. Kasandra was there, and I was annoyed at her for letting Natasha fall off the bed. Then Chelsea started crying. I asked Kasandra to help me. She refused to move, so I pushed her out of the way using a back hand type motion with my left hand. Kasandra neither fell nor cried, and my gesture left no mark on her. It was ordinary parental discipline of a disobedient child at a difficult moment. To me, it never constituted “an assault” or “abuse” of Kasandra.
15. Ashley came home at about 5:45 p.m. He wanted to take the children for haircuts, but I did not want them to go out because it was raining. We argued and fought over the car keys. I telephoned my mother and, while on the phone, heard Kasandra vomiting upstairs. I went upstairs and found Ashley with her in the upstairs washroom. He cleaned her up, and we called Dr. Chiang. Kasandra seemed sicker than ever. Dr. Chiang told us to bring her in to see him the next day.
16. What happened next was terrifying. Kasandra was lying on the living room couch. Ashley was standing beside her. She did not respond when he spoke to her. He shook her a few times. She went stiff, with her fists clenched. She was making squealing and wheezing sounds that I had never heard before. She started shaking, her eyes rolled back in her head, and we could not find a pulse. I grabbed ice and cold water to put on her face thinking it would help, but it did not. Ashley called 911 while I held her and we started doing CPR. By this time it was almost 9:00 p.m. Kasandra was semi-conscious, when the ambulance attendants arrived and took her to the hospital.
17. Kasandra was first taken to the Peel Memorial Hospital. She continued to have seizures. She was transferred to the Hospital for Sick Children in the early morning hours of April 10. The doctors told us that she had severe brain swelling, and that her condition was unlikely to improve. She was removed from life support and died on April 11, 1991 at 3:50 p.m.
The Investigation and Prosecution:
18. When I was first interviewed by police on April 16, 1991, I told them as much as I could remember about what happened that day. I was traumatized and in a state of shock, but was as cooperative as I could be. The police were not believing my account of the events leading up to Kasandra’s death. They asked me to take a lie detector test and I agreed, because I had nothing to hide.
19. On April 24, 1991, I went to the police station to take the polygraph. Detective Stephenson then told me I had failed and was lying. He told me what Dr. Smith had told them. He said that Dr. Smith had told them that the injury that killed Kasandra had occurred between three and five hours before her seizures started, that it was not an accident, and that I was the person who must have caused her injury. It was obvious that I was being accused of causing her death. I tried to think of what I might have done, and then remembered I had pushed her with the back of my hand that afternoon when I was trying to look after Chelsea and Natasha. I told Detective Stephenson of this. They told me I had left a mark on Kasandra’s scalp from the imprint of my watch. I was arrested and charged with manslaughter.
20. I was released the next day on a surety bail in the amount of $20,000.00. My son and two daughters were now in my mother’s custody. My conditions prohibited contact with my children unless in the presence of my mother. My children were my life, and my separation from them was overwhelming for me. My family and friends supported me, but neighbours used to stop and stare at my house. I became isolated and depressed. Only the support of my family and friends kept me going.
21. I could not accept that I had caused Kasandra’s death because I knew what had happened in the bedroom. When I told other people what had happened, including Liisa Dickinson of CAS, who testified at my preliminary hearing, I described it in the same way – as a push that neither caused Kasandra to fall down nor cry. However, my lawyer, Robert Callaghan, who conducted my preliminary hearing, told me that there was no basis on which to challenge Dr. Smith’s testimony. He told me that Dr. Smith was a force to be reckoned with. I think his words were “he is the best of the best”. I remember the first day of the preliminary hearing when Dr. Smith walked into court – it was like a superhero entered the room. Everyone stopped what they were doing and stared at him.
22. Tom Wiley, who was my lawyer at trial, talked to me about the case in the same way as Mr. Callaghan. He told me that Dr. Smith’s findings established that Kasandra had received a major blow on the back of her head that left a mark in the shape of my watch, and caused the brain swelling which led to her death. This did not fit what I knew had happened on April 9, 1991 but it seemed to be proven as a scientific fact. He also told me that Dr. Smith was suggesting that I had violently shaken Kasandra. In time, I felt compelled to accept it and ‘admit’ it.
23. My family was supportive of me throughout the court proceedings. They went through a lot, and throughout the process took care of Jordan, Natasha, and Chelsea. Although I felt I had not done anything wrong, I felt extremely guilty. I realized that if I went through with a trial, my family would probably have to testify. I also knew that if I was convicted after trial, I would face a prison sentence that was much longer than if I pled guilty, likely by years. I could not bear the thought of being separated from my children for that long, or of asking my parents to take care of them for so many years. My mother was starting to get sick from the stress, and was diagnosed with heart problems. I believed that my circumstances were the cause of her illness.
24. In the summer, 1992, I realized I was pregnant with my third daughter Chanel. This increased my anxiety and stress. I thought I might have to give birth in prison. I knew Chanel would be apprehended by the Children’s Aid Society at birth. My lawyer Mr. Wiley told me that if I pled guilty to manslaughter, the Children’s Aid Society had agreed to let me have my children back in due course, because I would be showing remorse for my actions.
25. During this time I was seeing Dr. Bray, a psychologist. She diagnosed me as suffering from depression (I have been on anti-depressants for many years). Shortly before my trial commenced, she spoke to Mr. Wiley and expressed concern about my emotional health. On September 28, 1992, my trial began. I pleaded not guilty. I knew Mr. Wiley had been having discussions with the Crown about a joint submission on sentence if I pleaded guilty. He told me that I would be given a sentence of two years less a day in a reformatory if I pled guilty, and would be able to serve the time in the Vanier prison which was near my parents’ home. It was even possible that I could be on parole in time to give birth to my daughter Chanel. Mr. Wiley kept telling me that he had no evidence to challenge what Dr. Smith said about Kasandra’s death, and I was fighting a losing battle. On October 1, 1992, I pled guilty to manslaughter before Mr. Justice Langdon in the Superior Court of Justice in Brampton, and admitted through Mr. Wiley that I had hit Kasandra and caused her death.
26. On October 22, 1992, I was sentenced to two years less a day in prison, followed by three years of probation. On March 31, 1993, Chanel was born. While in prison, I understood that I should continue to ‘admit’ having hit Kasandra if I wanted early parole so I did so. My children needed me and I needed them. I was granted parole on June 21, 1993. In 1995, I regained custody of my four children. I felt as if I had abandoned them, and felt terrible for having placed the burden of their care on my parents for so long. I have kept my children ever since.
Recent Information About the Evidence in My Case:
27. In 2007, I was contacted by James Lockyer from the Association in Defence of the Wrongly Convicted (AIDWYC), who told me about the ongoing review of Dr. Smith’s cases, and said that my case was one of the ones that had been examined. I had seen questions raised about Dr. Smith in the media. I met with Mr. Lockyer at Mr. Wiley’s office shortly after he contacted me in April, 2007, as well as with Mr. Justice Goudge in June, 2007, before the Inquiry began. Even though it brought back traumatic memories and reopened old wounds for both me and my family, I was eager to accept AIDWYC’s offer of assistance to review my conviction.
28. I followed the Inquiry into Pediatric Forensic Pathology in Ontario closely, and attended on several occasions to listen to the testimony. I have read Dr. Whitwell’s report that was prepared for the Inquiry, and I watched her testimony on the internet. I went to the Inquiry and watched much of Dr. Smith’s testimony. I also attended Mr. Justice Goudge’s press conference on October 1, 2008 when he released his final report, and I have started reading it.
29. I still do not know what caused Kasandra’s death. I know that her death may have resulted from events before April 9, 1991, including the possibility of epileptic seizures, or an earlier injury to her brain that no one knew about. Neither of these possibilities had been raised with me by Mr. Wiley, or anyone else, as feasible before I pled guilty. I now know that there is no scientific evidence that I injured Kasandra when I pushed her or that my wristwatch left a bruise on the underside of her scalp. Dr. Smith’s testimony in these regards had a huge effect on the lawyers representing me and was a critical factor in my decision to plead guilty to manslaughter. I hope that I can now prove that I did not assault or abuse Kasandra and did not cause her death. I would never have pled guilty if I knew then what I know now about Dr. Smith and Kasandra’s death.
30. I believe it would be in the interests of justice to allow me to appeal my manslaughter conviction. I did not cause Kasandra’s death, and the fact that I have been convicted of doing so has haunted me ever since. I ask the Court to give me an opportunity to appeal my conviction....
Harold Levy...hlevy15@gmail.com;
