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A Defence lawyer's perspective on issues in criminal law
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The Spectre of Wrongful Conviction: More than mere Water-Cooler Chit-Chat
Posted in HOMICIDE, Tagged Criminal Defence BlogJanuary 29, 2020
“No criminal justice system is, or can be, perfect. Nevertheless, the manner
in which a society concerns itself with persons who may have been wrongly convicted and imprisoned must be one of the yardsticks by which civilization is measured.”
Justice Report on Miscarriages of Justice (1989), The British Section of the International Commission of Jurists
WATER-COOLERS IN THE COURTROOM
This post is not about our ability to chat around the courtroom water-cooler. The courtroom water-cooler, however, serves to identify a real concern that we have our priorities mixed up.
“Is the government going to start requiring me to bring my own toilet paper to court?”, pondered the Calgary Criminal Defence Lawyer’s Association President. This was in response to the Kenny Government’s cost cutting measure to save Alberta courts approximately $50,000 per year in water and tissues. The CDLA president properly added that the “concern should be for witnesses”, not lawyers.
According to Alberta Justice, however, witnesses will still be provided water and tissue paper, but lawyers are expected to bring their own.
Now, so as to avoid being labelled a hypocrite, let me start by saying that I have previously made the argument that in today’s recessed Alberta economy, where previous Governments (Conservative and NDP) have saddled this Province with massive debt due to irresponsible, uncontrolled spending, we all need to correct the course by digging a bit deeper. Specifically, “…in today’s economy, maybe we all need to do a little more for a little less”.
It is also worth pointing out that the Kenny Government wants its employees – including lawyers – to accept a 2% wage rollback to help curb the Province's skyrocketing debt. So with this in mind, let me say that as long as witnesses are provided water and tissue paper, I am of the opinion that no matter how hard the Calgary Defence Lawyer’s Association (CDLA) fought for water coolers in courtrooms, lawyers can bring their own bloody water bottle to work. In other words, we can all do a little more for a little less. Recognizing the present state of Alberta's economy, this Calgary criminal lawyer finds this story a little embarrassing.
More importantly, it struck me that the Calgary Defence Lawyer’s Association had more important things to talk about; specifically, the possible wrongful convictions of Butch Chiniquay, Shelby Herchak and Tammy Bouvette.
I don’t think it’s an understatement to say that our priorities may be mixed-up. In short, we can bring our own water, we can't give back the years these people lost.
Three stories, same theme
The timing of the water cooler story is also a little curious. It released on or about January 22nd, 2020, about a week after the CBC’s Fifth Estate aired Part-Two of its investigative report about possible wrongful convictions arising from the work of former pathologist, Dr. Evan Matshes. Part two of the Fifth Estate report titled "the Autopsy" focussed on Tammy Bouvette – a mother initially charged with second degree murder who accepted a plea bargain to criminal negligence causing death in the case of an infant who drowned in a bathtub while in her care. In this case, British Columbia police were of the view that the death was a tragic accident, but things reportedly changed when Dr. Evan Matshes opined that the baby had sustained “intentional injuries”. A panel of experts who later reviewed Dr. Matshes' work concluded that his opinion was “unreasonable”.
Part 1 of the Fifth Estate probe focussed on possible wrongful convictions in two other cases: Butch Chiniquay and Shelby Herchak. In these two cases, a review panel tasked with evaluating Dr. Matshes’ work concluded that Matshes' findings were “unreasonable”. According to Ms. Herchak, she was innocent, but pled guilty to a lesser charge because of the immense pressure that she was under. The CBC reported that she was unaware of the expert panel's criticism of Dr. Matshes. This was disclosure that might have exonerated her. Ms. Herchak served a lengthy penitentiary sentence.
Mr. Chiniquay was similarly apparently not aware of the disclosure that could have exonerated him. His defence lawyer queried why he was seeing the disclosure for the first time, year’s after his client pled guilty and served a lengthy jail sentence.
Like Chiniquay and Herchak, it is reported that Tammy Bouvette did not receive disclosure that could have exonerated her. Bouvette's lawyer, Jesse Gelber, told The Fifth Estate he did not receive that expert panel review of Dr. Matshes, despite asking the Crown prosecutor if further disclosure was available.
"I had no idea. That was not disclosed to me:, he said.
Where Alberta Justice claimed to have told Butch Chiniquay’s lawyer about the additional disclosure, they similarly claim to have advised British Columbia prosecution services about its existence. The RCMP questioned the veracity of this assertion.
Ms. Bouvette always maintained her innocence, but “[w]ithout knowing about the panel finding in her favour, [she] pleaded guilty to criminal negligence in order to avoid a life sentence for second-degree murder”.
Does that theme sound familiar?
Like Chiniquay and Herchak, Ms. Bouvette mitigated risk by accepting a plea to a lesser offence. All three accused received penitentiary jail sentence and spent time behind bars. All three were reportedly deprived of disclosure that might have significantly altered their decision to plead guilty. Even if they would have still pled guilty, all three were apparently deprived of important disclosure that could have dramatically assisted their bargaining position for a lesser sentence.
"Tammy Bouvette is a victim of a miscarriage of justice”, said Innocence Canada lawyer, James Lockyer.
The burning question is whether all three of these people – Bouvette, Chiniquay and Herchak – were tricked by Alberta Justice into pleading guilty. I say "trick" because if these accused were not made aware of the disclosure they may have plea bargained from a less than tenable position. If the answer is “yes”, the words of of Ms. Bouvette are apropos: “shame on them”.
But you know what, maybe all of us working in criminal justice need to look in the mirror? In my opinion, maybe we all need to do a little soul-searching, be a little more accountable and take stock of our part in potential miscarriages of justice? On that point, I today overheard a conversation in docket court between a Prosecutor and a senior Calgary defence lawyer; it went something like this.
Crown: “There is more disclosure, do you want it”.
Defence: “No, my old eyes don’t need to see that”.
Now, it is possible that the disclosure was known to be insignificant or of marginal relevance. That said, in light of the Fifth Estate report exposing the Crown in three cases for possible non-disclosure resulting in arguable wrongful conviction and in the same report where Alberta Justice suggested one defence lawyer did not accept disclosure when it was offered, I think January 2020 is not the time to intentionally decline to accept disclosure when its available. I mean, what happens if there was something in that new disclosure that could have changed that accused’s circumstances?
For criminal defence lawyers, the lesson from Chiniquay, Bouvette and Herchak is that we should always accept disclosure and review it. I imagine the defence lawyers attached to all three of these so-called “offenders” lost some sleep, may even have had a sleepless night or two. I imagine in the privacy of their offices there has been some second guessing.
Now, to be fair, I have been doing this job for nearly two-decades. Writing this article, I don’t want you to think that I have always been perfect in my approach to defending cases. After all, I am human and like all defence lawyers, being human means that we will be frail. We will make mistakes. Though many of us practice with a lot of energy, we will experience fatigue to the point where we might take shortcuts. Of course, anybody hiring a criminal defence lawyer in Alberta should do their due diligence by retaining a lawyer that they have confidence will be less likely to fall prey to the frailties of error, fatigue and shortcuts. To that end, there is certainly a fine line between a robust practice and one where the volume is so obviously overwhelming that it demands scaling things back
That aside, even the most well intentioned, diligent criminal lawyers (Crown or Defence) can make mistakes.
Defence lawyers run a business. That business could mean gobbling-up as much work as possible; for though there is work today, there may be none tomorrow. However, we should look in the mirror; for as private counsel we must always balance the risk that too much could mean that we are, practically speaking, doing too little.
In my view, all of us at the criminal defence bar in Alberta should take a moment to reflect – this lawyer included.
SHOUT FROM THE ROOFTOPS
A colleague of mine, who incidentally is an incredible defence lawyer -- Michael Bates -- remarked, after watching the Fifth Estate that we should all be "shouting from the rooftops". I really like the expression, so I lifted it. It is so appropriate to the Fifth Estate report.
All of us practicing in the field of criminal law in Alberta should be shouting from the rooftops to have an inquiry into what appears to be potential miscarriages of justice in the cases of Butch Chiniquay, Shelby Herchak and Tammy Bouvette. Every criminal defence lawyer in Alberta should be demanding a proper inquiry. Alberta’s two criminal defence lawyer associations, the CTLA and the CDLA should voice the will of defence lawyers and their clients by vigorously campaigning for this to happen. To address the CDLA: if it has time to complain about cost-cutting water-coolers, it has time to do the important work of exposing potential wrongful convictions.
In my view, however, Alberta Justice should be leading the charge.
Unfortunately, judging by the Fifth Estate report, Alberta Justice apparently doesn’t care. The CBC inquired of Alberta Justice Minister Doug Schweitzer as to whether a probe would be initiated. He not only declined to be interviewed, but commented through a spokesperson that this matter predates his time in office. Rather than doing what is right I guess our present Justice Minister prefers to deflect blame and ignore issues.
Just for a moment think about Mr. Schweitzer;s response. The Justice Minister, who has the power to order a review, declines to do so because the issue “predates” his employment. Frankly, I have a hard time imagining a more insensitive and indolent response. It is insensitive to those impacted and appears to be laziness to the point of dereliction of duty.
Sadly, if the Justice Minister doesn’t care, why should anybody else working under him? An organization is a reflection of its management.
Additionally, since it was Alberta Justice who initially bungled the first inquiry into Dr. Matshes, the question is: why would they want to undress old wounds?
A BUNGLED INQUIRY
According to the Fifth Estate, Alberta Justice ordered a review of Dr. Matshes’ work, but that was set aside because they didn’t give Dr. Matshes a chance to respond. As reported:
In a series of letters and emails to Alberta Justice in 2012 and 2013, Matshes and his lawyers asked that the findings of the review panel be set aside. Initially, Alberta Justice vigorously defended its process and the findings of the report. Officials with the ministry said they were concerned about possible miscarriages of justice and the impact on murder cases.
Then in November 2013, Alberta Justice conceded in court that Matshes was not properly consulted. Both parties agreed to set aside the expert panel report. A judge formally approved the agreement and issued an "order to quash."
If that’s what happened, Albertans should be concerned; for basic fairness requires that a party targeted for wrongdoing – even a pathologist as questionable as Dr. Matshes – should be given fair opportunity to respond.
More troubling, no second panel has ever been established. According to Eric Tolpannen, head of Alberta Prosecution Services, things were done “by the book” (see The Autopsy, Part 2). He added that “…because of the decision to "quash" the report, its findings are "inconsequential."
So let me get this straight, Alberta Justice orders a review of the work of a questionable pathologist by having his work reviewed by an independent expert panel. That independent panel opines that the conclusions of that pathologist were "unreasonable". That pathologist's work seriously impacts at least three homicide cases before the courts. Alberta Justice then unfairly treats the maligned pathologist by not giving him the professional courtesy of a proper consultation, resulting in the expert panel’s findings being “quashed”. Of course this doesn’t mean that the expert panel’s criticism of Dr. Matshes' work was wrong, only that Alberta Justice erred in its handling of the review. Despite knowing that lives might have been negatively impacted by Dr. Matshes' conclusions, Alberta Justice declines to order a second review.
Mr. Tolpannen’s logic is that since the expert panel’s finding were quashed, the findings are “inconsequential”. Riddle me this: how can these findings be inconsequential when it appears it was the Crown's procedural bungling rather than substantive mistakes by the panel of experts that resulted in their report being quashed? One thing is for certain, the expert panel's criticism of Dr. Matshes was not inconsequential to Butch Chiniquay, Shelby Herchak or Tammy Bouvette.
British Columbia's Approach
Thankfully, though Justice in Alberta may be little more than water cooler chit-chat, it appears British Columbia’s Attorney General seems to care.
The office of B.C.'s attorney general has appointed one of the country's top defence lawyers to probe the conduct of prosecutors involved in a second-degree murder charge laid against a babysitter in 2011.
Marilyn Sandford, a Vancouver lawyer, was named as a special prosecutor Wednesday following inquiries by CBC's The Fifth Estate about why defence counsel was not provided a key report that contradicted evidence used to charge Tammy Bouvette of Cranbrook, B.C., with murder.
In the opinion of this defence lawyer (and indeed, many Calgary criminal lawyers that I have spoken to), all of us should be shouting from the rooftops. Rather than lamenting the loss of water coolers in courtrooms, we should be demanding an inquiry into the cases of Bouvette, Chiniquay and Herchak. If for no other reason we should do out of concern for our own cases. Defence lawyers should do their part to voice their discontent over the handling of the Matshes' situation. Individual Crown Prosecutors should not feel silenced from the top-down and should shout from the rooftops as well. After all, they are part of an office whose integrity is presently at issue.
Of course, all of us should make every effort to ensure disclosure is treated with the sanctity that it deserves (this defence lawyer included).
There is always room for a lesson. If we take no lessons from Butch Chiniquay, Shelby Herchak and Tammy Bouvette, there is one thing for certain, no lessons will be learned and there will be more Chiniquays, Herchaks and Bouvettes in the future.
David G. Chow
"But for the grace of God go I"
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