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| John L. Hill |
Bouvette’s counsel appealed conviction seeking to admit fresh evidence to establish material non-disclosure by the Crown and for orders allowing the appeal, vacating the guilty plea, setting aside the conviction and entering an acquittal or, in the alternative, directing a stay of proceedings. The Crown conceded that the fresh evidence should be admitted, the appeal allowed, the conviction set aside and an acquittal entered or, in the alternative, an order made staying the proceedings.
In the Bouvette case, the child was discovered face down in a bathtub and unable to breathe. The young girl could not be resuscitated and although airlifted to a children’s hospital in Calgary, died the following day. As in Marquardt, an autopsy was performed. On May 30, 2011, Dr. Evan Matshes, then the assistant chief medical examiner in Alberta concluded that death resulted from drowning, but some unexplained facial lacerations led to a certificate that claimed the cause of death was “undetermined.”
In May 2012, before Bouvette entered her plea, Cranbrook RCMP was formally advised by its Alberta counterpart that Alberta Justice had commenced a review of cases in which Matshes had performed autopsies and questioned his reliability as a medical examiner. This caution was not disclosed to defence counsel before Bouvette entered her plea.
The British Columbia Prosecution Service in 2020, announced the appointment of a special prosecutor to conduct an independent review of the case to determine whether a miscarriage of justice may have occurred. That review led to an acknowledgment that an injustice had been done and substantiating the sole ground of appeal in the Bouvette case that read as follows:
That Crown Counsel failed to disclose to the appellant the evidence of three forensic pathologists comprising an expert review panel that reviewed the autopsy report in the case and stated that the conclusions of the medical examiner that there was “no benign” explanation for the injuries of the deceased, that they were “intentional injuries,” and that they were “typical of child abuse” were unreasonable. The appellant pleaded guilty based on the autopsy report with only a partial understanding of the case against her and without the ability to make full answer and defence due to the non-disclosure of the expert review panel’s evidence. The guilty plea therefore constitutes a miscarriage of justice per s .686(1)(a)(iii).
With this fresh evidence admitted, the appeal was allowed, the guilty plea vacated, conviction set aside and a stay of proceedings entered. Without being able to make full answer and defence the appellant’s guilty plea was deemed invalid as it deprived her of an opportunity to make an informed choice about how to proceed.
The conviction was set aside as being miscarriage of justice. The evidence and circumstances suggested a reasonable possibility that the appellant would not have pleaded guilty to criminal negligence causing death had full disclosure been made. Left for the court was to determine the appropriate remedy. An acquittal was not seen as the appropriate remedy. An acquittal can be secured if there is no evidence that could be mustered to secure a conviction upon retrial.
Here, there was some evidence available to the Crown, such that an acquittal would not be the only reasonable verdict on a retrial. For the same reason, application of the exceptional remedial approach set out in Truscott (Re) 2007 ONCA 575 was not justified. The record before the British Columbia Appeal Court was incomplete and there was a theoretical possibility of a new trial. Justification for a stay is set out in R. v. Babos 2014 SCC 16, where there is prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”, and no alternative remedy capable of redressing that prejudice.
What could not be overlooked was that the appellant had suffered serious prejudice as a consequence of the disclosure breaches. She has served the entirety of her sentence. Ordering a new trial would constitute an abuse of process. The appropriate remedy was seen as a judicial stay of proceedings.
While Tammy Bouvette’s criminal record is now cleared, she is left in a judicial vacuum of not having been exonerated by a not guilty finding. Tammy Marquardt was compensated, however miserly, for her wrongful conviction. Will Tammy Bouvette be considered for compensation when she has endured an injustice but never acquitted?
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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