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A Defence lawyer's perspective on issues in criminal law

Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics.  Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject.  My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical.  If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading!  Happy watching!

 


The Spectre of Wrongful Conviction: But for the Grace of God Go I

Tagged Criminal Defence Blog

March 2, 2020

THE SAGA CONTINUES

The saga continues in the cases of Butch Chiniquay, Shelby Herchak and Tammy Bouvette.  I have previously written about this in a pair of other articles.  The most recent episode more closely concerns Mr. Chiniquay, but is relevant to the other cases under review.

https://www.cbc.ca/news/canada/calgary/judge-alberta-autopsy-scandal-1.5469933

As reported by the CBC, a sitting Alberta Provincial Court judge and former head of the Alberta Crown Prosecution Service (ACPS) has hired a lawyer to act as his voice in relation to the “public controversy” over disputed autopsies claiming that Butch Chiniquay’s Calgary defence lawyer was “well aware” that the work of Dr. Evan Matshes “…had been “rendered useless” in a past review of criminal cases”.  

According to Judge Greg Lepp, Mr. Chiniquay’s lawyer was “clearly aware from media releases and news coverage that Matshes was unreliable in criminal cases reviewed by an external committee”.  Judge Lepp further wrote that the lawyer was aware that “…his opinions back then were useless to the prosecution”.  Furthermore, he asserted that Mr. Chiniquay’s defence lawyer had been “quoted in a newspaper article at the time, agreeing that the negative review of some of Matshes’ autopsies would benefit the accused and not the prosecution”. According to Judge Lepp, that “newspaper clipping was a factor” demonstrating that Alberta Justice had met its disclosure obligation”. 

I am not aware of any case endorsing a process where the Crown can meet its specific disclosure obligations by relying on the media.

 

the 2012 newspaper clipping

Mr. Chiniquay's lawyer was quoted in 2012:

"If there was any difficult with (Matches') methodology, it was to the benefit of the accused".

Chiniquay's defence lawyer added that he "hasn't heard if the Crown plans to revisit the case".

https://www.pressreader.com/canada/calgary-herald/20121130/281492158614576

It appears from reading this article that as of November 30th, 2012 (the date when the aforementioned article was published) the Crown was still in the process of "considering its disclosure obligations".  It also appears that Mr. Chiniquay pled guilty sometime about a year prior to the publication of the 2012 media release.

https://www.pressreader.com/canada/calgary-herald/20110912/283081295936926

 

parties in opposition

At issue is whether disclosure was supressed by the Crown in at least three cases where people accepted a plea bargain to serve substantial jail time in order to avoid a potential life sentence for murder. Mr. Chiniquay claims his innocence. 

 “I just want to tell everybody, like, I’m innocent….  Nobody is going to understand me, what I’ve been through. This is painful”.

At the outset, though I certainly do not dispute that mistakes might have been made, I have a incredibly hard time believing that Mr. Chiniquay’s criminal defence lawyer knowingly ignored powerful disclosure that might have exonerated his client.  Let me say that again: I have a hard time believing that. 

On this same line, I also accept that Alberta Justice sent some kind of communication to defence counsel indicating that additional disclosure was available. 

Now, this post is not about defending a colleague or maligning the Crown; rather, it is about closely scrutinizing the words of the former head of the Alberta Crown Prosecution Service.

What is important to understand is that there is a difference between advising a lawyer that more disclosure is available and taking active steps to specifically highlight the powerful nature of the disclosure so as to ensure that its significance has not been missed.  From reading the CBC article, it appears that notice may have been given about the existence of additional disclosure months after Mr. Chiniquay’s case had resolved in the Courts. By that time, it appears that Mr. Chiniquay was already serving a lengthy prison sentence. 

According to Judge Lepp, 

"…in 2012, he assigned a senior prosecutor to ensure that appropriate disclosure was made to all defence counsel. That prosecutor...told [Chiniquay’s defence lawyer] directly [that] further disclosure was available.  

 It was made available, and receipt of it was declined".

To reiterate Stinchcombe, [1991] 3 SCR 326, the Crown has a legal duty to disclose all potentially relevant information to the accused for the purpose making full answer and defence. This is a persistent obligation that continues even after a case has completed in court.

Mr. Chiniquay’s criminal lawyer bristled at the suggestion that he declined the disclosure, stating that no one told him what the disclosure wasthe significance of the disclosure and, importantly, that he was “not Chiniquay’s lawyer at the time that Alberta Justice obtained the peer review…that stated there was not adequate evidence of homicide”.  Judge Lepp responded that “…there was no obligation on the part of the prosecution service to say precisely what was in the document” and that “…[t]he Crown is never required to summarize or highlight portions of relevant disclosure”.

Having regard to the circumstances of this controversy, it is this last comment that I find particularly disconcerting.

role of crown

From reading the CBC article, it appears that the former head of prosecution services in Alberta has admitted that the Crown never highlighted the significance of the disclosure to the defence.  It is also clear that the Crown was aware that the accused never received that unspecified disclosure. 

Judge Lepp is correct to argue that there is no definite legal obligation on the part of the Crown to summarize disclosure. However, there are degrees of everything.

To that end, it is also true that the prosecution should neither hide a needle-in-a-haystack nor ignore its responsibility to ensure that justice is done. To ensure that justice is done, it is my opinion that there may be circumstances where the Crown must assure itself that the significance of critical disclosure was not lost in the minutiae, ignored or overlooked altogether.  Of course, this all depends on the circumstances. 

As was held in Boucher v. The Queen, [1954] S.C.R. 16 (S.C.C.) (emphasis added):

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, [page34] the seriousness and the justness of judicial proceedings. [Emphasis added.]

Boucher reminds us that the Crown has a duty beyond winning a case. And just as disclosure may be ongoing, the Crown’s duty to those that it prosecutes -- or has prosecuted -- continues even after the case has finished in court. As the Court stated in Boucher, the function of a prosecutor is not about “winning or losing”, it’s about ensuring that “justice is done”.  

Ask yourself this question: is it consistent with ensuring that "justice is done" to decline to highlight the significance of disclosure in circumstances such as those that prevailed on Mr. Chiniquay?

extent of the obligation

If we accept Judge Lepp’s response to the CBC, it is clear that the prosecution had good reason to believe that Mr. Chiniquay – who was in jail -- was not aware about the content of important disclosure that could have potentially exonerated him. This means that the propriety of Mr. Chiniquay’s guilty plea and jail sentence was at issue. 

Judge Lepp indicated that the Alberta Crown Prosecution Service (ACPS) "could only assume that [the defence lawyer’s] declining of further disclosure regarding Dr. Matshes was based on informed instructions from his client”. Lepp went on to say that the “ACPS fully met its disclosure obligations in this case." Of course, if the disclosure was not actually provided, it's hard to understand how the Crown could "assume" that there was an "informed instruction".

In contrast, Mr. Chiniquay’s former lawyer has asserted that he was not counsel at the time the review panel findings maligning Dr. Matshes’ work were finalized. Judge Lepp apparently declined comment. 

This is an important topic; for as The Fifth Estate correctly reported: “…if Chiniquay did not have a lawyer acting for him, then prosecutors had an obligation to reach out to [him] directly”. In other words, they arguably needed to do more. Additionally, if Mr. Chiniquay did not have counsel, then how could Alberta Justice assume that there was an "informed" instruction to decline the material?

If it is true that the Crown only advised a former lawyer about the existence of unspecified disclosure, a reasonable argument can be made that the Crown’s “assumption” that the material was declined based on instructions was reckless or willfully blind. Additionally, though it may be true that the Crown is not obliged to summarize or highlight important disclosure, it is my view that this is precisely one of the exceptions to the rule.  

I say this for the following reasons.

recklessness and willful blindness

Recklessness occurs where a person is "aware that there is danger that his or her conduct could bring about a prohibited result but persists in following a course of conduct despite the risk. Put another way, a party may be reckless where they see the risk and take chance. 

Recklessness is distinct from willful blindness.

The doctrine of willful blindness imputes knowledge in circumstances where suspicion is aroused at a point where a party must reasonably recognize the need for further inquiries, but deliberately chooses not to make those inquiries (principle adapted from R. v. Briscoe).  

In this case, Mr. Chiniquay’s lawyer says that he had no memory of declining disclosure of any kind, at any time.  He adds that the significance of the disclosure was never directly brought to his attention. 

According to Judge Lepp, his former office was

(1) aware of the disclosure and its nature, 

(2) aware that it did not specify the content of the new disclosure when it contacted Chiniquay’s former defence counsel, and 

(3) was aware that the unspecified material was declined by the lawyer. 

Add to this that Judge Lepp’s former office must have also been aware that Mr. Chiniquay had already pled guilty, been sentenced, was serving time in jail and that there was a reasonable prospect he was no longer represented by counsel, energizes my view that more should have been done.

Now, I don't want you to think that an unretained lawyer has no continuing duty of loyalty to his or her former client. However, the fact that the lawyer was apparently former counsel in a closed case helps to illustrate that contrary to what Judge Lepp says about the Crown’s obligation to highlight the importance of disclosure, this is a case where shouting from the rooftops was so very important to ensure that this critical information had not been lost, overlooked or ignored altogether. 

In my opinion, the case of Butch Chiniquay is precisely the kind case where, based on Judge Lepp’s comments, the Crown was obligated to make additional inquiries (to include directly contacting Mr. Chiniquay) and to ensure that the significance of the new information was not cloaked in a shadow of generality. In other words, it was not enough to say, months after the case had been closed, “there is more disclosure” and not to define what that disclosure was. 

JUDGES IN THE MEDIA

The Fifth Estate offered some insight into the peculiarity of a judge engaging the media about a case. 

Legal experts consulted by the The Fifth Estate…said that while it was ‘unusual’ for a provincial court to judge to engage in this kind discussion about criminal cases, it is not improper and can be seen as helping the public understand what happened.

With all due respect, from what I’ve read in the article, my position is that it was not appropriate for this judge to enter into the fray. 

To that end, it is not insignificant that the commenting judge was the former head of the Alberta Crown Prosecution Service.

It is also significant that the Judge did not make a single comment that could not have otherwise been addressed by a current member of ACPS.  The Crown has many lawyers capable of airing the ACPS position.

Therefore, though I am not arguing that in certain rare circumstances a judge cannot weigh-in on a case in the media, it was not, to my mind, advisable in this case. 

The Fifth Estate further reported that the Crown has hired external counsel to review the conduct of their prosecution services. Fixed with information that the ACPS is presently under an external and hopefully independent review, I find it even more peculiar that the former head of the Service, now a judge, would weigh-in. Given Judge Lepp’s past connection to the ACPS, his narrative arguably rings of personal motivation, defensiveness and brinkmanship. 

This of course is only my opinion.

BUT FOR THE GRACE OF GOD GO I

At the end of the day, it is the position of this Calgary criminal lawyer that we all need to take a lesson from Mr. Chiniquay, Ms. Herchak and Ms. Bouvette. 

Setting aside who did what and who knew what, it is my opinion that the larger issue concerns what we do in criminal justice to mitigate the likelihood of this kind of controversy in the future. I say this because this controversy is neither healthy for any of the persons involved, nor is it healthy for our criminal justice system or the public's perception of it. For our criminal justice system to credibly function, it needs to be seen as beyond reproach.

“Beyond reproach” doesn’t mean “perfect” or without error. Rather, it means that our justice system must operate on a structure of functional checks-and-balances that when working properly, seriously reduces the likelihood of error. It also means that when mistakes are made or when things could have been done better, we simply try to learn so we don’t rewind and repeat in the future.

I know I sometimes read as being highly sanctimonious. I apologize if I come off that way. 

Full disclosure...

I certainly have not been perfect in my legal career. With over two-decades of appearing in the Provincial Court of Alberta and today nearing the threshold, crossing into my eighteenth year appearing at all levels of court, when I reflect upon my time defending cases, I think: “what mistakes have I made and what has been the cost”?

But for the grace of God go I. 

When I ruminate about Mr. Chiniquay, Ms. Herchak and Ms. Bouvette, I think about the time they lost. If they lost time being treated as guilty persons who were in fact innocent, that is a tragedy. It’s a tragedy not only because it demonstrates weakness in our criminal justice system, it is a tragedy because of the personal impact on them as people. Of course, we also cannot discount the impact that this controversy has had on families, friends and colleagues relating to all of the parties, including the deceased. 

All of us have short lives on this earth. It is a tragedy when life is cut short for any reason.  To my mind, time in prison shortens life.

When Mr. Chiniquay stated, “this is painful”, I have little doubt that it is. 

At this point, it is my view that it doesn’t really matter who is right or wrong, it only matters what lessons we learn moving forward. It's hard to imagine, however, that any lessons have been learned when a provincial court judge has stepped down from the bench to tell you "that “…[t]he Crown is never required to summarize or highlight portions of relevant disclosure”.   I suspect that Mr. Chiniquay, who spent years behind bars, wonders, "where was the humanity in that"?  

This most recent episode does little to bring a climactic end to this saga; for no matter what is said about Mr. Chiniquay, it in no way deflects from Shelby Herchak or Tammy Bouvette.  And though Mr. Chiniquay, Ms. Herchak and Ms. Bouvette form the epicentre of this controversy, we should not forget about the case of Preston Lochead.  

https://www.cbc.ca/news/canada/fifth-estate-autopsy-did-a-killer-walk-free-1.5431705

The question remains: has justice been done?

 

David Chow


David Chow is a full service Alberta criminal lawyer with his main office located in Calgary.  If you are combing the Internet for Calgary criminal lawyers who might be suitable for your case, consider calling for a free consultation. For anybody who has been charged with a criminal offence anywhere in Canada, it is important that they do their due diligence before hiring their lawyer of choice. The decision is important. 


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This entry was tagged Criminal Defence Blog and posted on March 2, 2020


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