Monday, March 7, 2016

Another Dr Smith case

The Court of Appeal for Ontario today set aside a guilty plea holding the accused was forced into the plea though innocent by the risk of wrongful conviction. 

Some might ask how rare is this type of powerful plea inducement?

 R. v. Shepherd, 2016 ONCA 188:

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. 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.

Of the Law Societies of Upper Canada and Nunavut 


Unknown said...

How did they come to learn that Maria Shepherd was in fact innocent? Did they first have to show that Dr.Smiths evidence and conclusion, pointing to Ms. Shepherds guilt was false? Why were they not a able to get anyone at the original trial to refute Dr.Smiths evidence?

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