calgary defence blog
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: Shelby Herchak
Tagged Criminal Defence BlogMarch 8, 2020
Ever notice that when a Government agency reviews itself (or is subject to review), time seems to slow to a pace that seldom prevails upon an ordinary person? For example, on July 3rd, 2019 this Calgary criminal lawyer posted about a police incident in Pelican Narrows that was captured on video. It was disturbing. An officer had a firearm drawn, pointing at man who was on his knees. The officer threatened to kill the man.
The RCMP response to the conduct of their member was to report an intention to “investigate”.
Certainly, investigation is proper; however, as I also explained that if an ordinary person uttered threats captured on video in circumstances similar to the officer, they would have almost certainly have been arrested, immediately charged, possibly held in custody pending a bail hearing and prosecuted. In contrast, the officer in Pelican Narrows – who unlike an ordinary accused was unnamed – was placed on desk duty while his department "investigated". I previously called this “investigation deflection” – effectively an organization’s media communication strategy designed to make it seem as if something is being done when in the long term, the goal may be nothing more than to let the controversy slide from memory.
In my article suggesting differential treatment, I suggested that this officer would probably ride a desk for a short while, but eventually return to full duties, with his behaviour weeks or perhaps months behind him. I recently scanned the Internet for a news update about this incident – which I first became aware of when it was aired on national television – but could find nothing. It appears that this incident has been forgotten. No more questions, no more answers, no reported consequences, no conclusion.
In 2020 The Fifth Estate aired a two-part series into the work of Dr. Evan Matshes. As the CBC has consistently updated the public about this controversy, it seems that they intend to follow the investigation into the cases of Shelby Herchak, Butch Chiniquay and Tammy Bouvette to their conclusion. Good for them.
As has been reported by CBC’s, The Fifth Estate, the Crown is under an “external review” in relation to its handling of cases involving Shelby Herchak, Bruce Chiniquay and Tammy Bouvette. It appears this review was triggered after Alberta’s Justice Minister was pressured by the CBC and perhaps the swift actions of British Columbia’s Prosecution Service, who almost immediately ordered a review of the handling of Tammy Bouvette’s case. Where Alberta Justice’s initial position seemed to be disinterested in a review, as the CBC fleshed out the issue, it appears Justice was forced to act in the face of close media scrutiny. It appears that The Fifth Estate is keeping its fingers firmly gripped on the Government's jugular.
The question is, however, how long should it really take for this kind of review process to conclude? I mean, it strikes me that most of the material for the investigation is already available. Court records can be obtained in about a month or less (in fact, the CBC has already obtained some), disclosure (including reports from the medical examiner) are already on file and the Crown almost certainly has maintained its administrative file containing letters, emails, memos and other communications. To give an example, it is not unusual for the Law Society of Alberta to audit its members. In my experience, they make a request to the targeted lawyer, usually giving them about a week to pull the requested file(s) for review. So how long should it reasonably take to review the cases of Bouvette, Herchak and Chiniquay?
Now, I am not arguing the speed is always advisable, for of course the parties need to ensure they do things right, not fast. My point, however, is that it often appears that when organizations such as those connected with the Government monitor themselves, they give themselves the benefit of time that it is not granted to ordinary people.
Having said all of this, it seems that The Fifth Estate has no intention of letting the controversy surrounding Chiniquay, Bouvette or Herchak dim to the outskirts of faded memory. The media has its hand on the the jugular.
On March 6th, 2020 The Fifth Estate released yet another episode in the disclosure controversy surrounding Butch Chiniquay, Shelby Herchak and Tammy Bouvette. This most recent instalment concerned the case of Shelby Herchak.
As reported, about a decade ago an 18-year old Shelby Herchak was charged with second-degree murder. She was publicly vilified as a baby killer. Though she always maintained her innocence, she pled to the lesser included offence of manslaughter to avoid the risk of a life sentence that would flow from a murder conviction. As previously explained by James Lockyer:
"We know from wrongful conviction cases in Canada … that people pleaded guilty to crimes they didn't commit because they were facing a murder charge.”
I previously added:
It is worth recognizing that it is very likely people in our criminal justice system plead guilty to crimes they didn’t commit on a relatively regular basis. They do so because they are sometimes offered a sentence that even an innocent person would seriously consider. They might do so because their jeopardy is mitigated when more serious charges are withdrawn by the Crown in exchange for a plea to lesser charges. Second degree murder, for example, carries a life sentence without opportunity for parole for a minimum of 10 years. By contrast, the penalty for manslaughter is wide, ranging from no jail to a life sentence. When Mr. Chiniquay and Ms. Herchak accepted the plea bargain from murder to manslaughter they significantly mitigated their jeopardy. In a sense, they chose a path that would eventually give them their life back. Shouldering the risk of losing one's life, even an innocent person would have to seriously consider such an offer.
Shelby Herchak claims she is an innocent person. She told the Fifth Estate (and others) that the death of her child was an accident. She pled guilty out of fear that nobody would believe the words of an 18-year old girl over those of an expert medical examiner.
why an innocent person might plead guilty
What we know from leading our everyday lives is that accidents happen. Most of them are little more than a stain on the carpet caused by toppling a glass of red wine, but others are more dreadful. An accident doesn’t necessarily distinguish between the trivial and the tragic. In criminal justice, Prosecutors will often evaluate the case for accident by relying heavily on the opinions of its expert medical examiner.
Ms. Herchak’s case can be distinguished from Butch Chiniquay. Where it appears that Mr. Chiniquay may have accepted a plea deal earlier in the process, with the Crown becoming aware about additional disclosure that may have exonerated him after he was already in jail, the CBC has reported that in Ms. Herchak’s case, she may have accepted a plea deal at a time when the Crown knew that the integrity of Dr. Matshes' work was in serious question. To that end, it was reported that a reviewing Medical Examiner (Dr. Brooks-Lim) altered Dr. Matshes' original report, changing the opinion initially proffered by him from “homicide” to “undetermined”. This occurred in 2012 – approximately a year prior to Ms. Herchak pleading guilty to the lesser offence of manslaughter.
Ms. Herchak was correct to suggest that this "...could have drastically changed everything”.
Would Ms. Herchak have pled guilty to manslaughter in 2013 (perhaps 2014) had she known about the revised autopsy report, apparently in the possession of the Crown sometime in 2012?
According to Vancouver criminal lawyer, Kayla Lee, the new autopsy report may have been sufficient to “raise reasonable doubt”.
Setting aside the legal nuances of “proof beyond a reasonable doubt”, it doesn’t take much imagination to appreciate that Ms. Herchak may have been emboldened had she known that her claim of innocence was, at least to some extent, supported by a panel of experts. As reported, the Crown's Medical examiner, Dr. Brooks-Lim, reviewed Ms. Herchak's case, and did not support Matches' opinion of homicide.
According to The Fifth Estate, in November 2012 a panel of experts reviewed 14 reports authored by Dr. Evan Matsches, concluding that he made “unreasonable” findings in 13 of them. One of the cases reviewed and labelled as “unreasonable” concerneed Shelby Herchak.
"To go through trial on a second-degree murder charge knowing that the medical examiner, all the stuff that he said, the judge and the jury would have believed him over anything that I said."
Ms. Herchak is not necessarily wrong. Had she been aware that her claim of accident was supported by other medical examiners, it strikes me that she may not have pled guilty. Even if she did accept a plea deal, armed with this new information, she may have been able to negotiate a much better plea deal.
Please do not read me to be saying that just because a person pleads guilty, they are necessarily guilty.
In the United States there is a process called “nolo contendere” – basically a “no contest” guilty plea. In Canada, a guilty plea can only be accepted if it satisfies the requirements of s. 606(1.1) of the Criminal Code of Canada. In short, the plea must be “voluntary”, made with the accused’s acceptance of the essential elements of the offence and entered fully appreciating the consequences, including the fact that a judge is not bound by any agreement made between the Crown and the Accused. Fixed with an understanding about 606(1.1) you might wonder how Ms. Herchak pled guilty; after all, her position is that the infant’s death was an “accident”.
In our criminal law, to prove “second degree murder” there must be evidence that the accused “intended” to cause death or was aware that he or she caused bodily harm that would likely cause death. Manslaughter is different in that the accused need only commit an “unlawful act”, the result of which is death.
By way of example, if an accused beats a person over the head with a baseball bat and death ensues, the Crown likely has a strong case for murder because the accused either intended to kill or deliberately caused bodily harm knowing that beating a person’s brains-in would cause death. However, to use a different example, it is also possible that a person can punch somebody during an altercation – thus committing the unlawful act of “assault”. If the person falls and dies from hitting his or her head, this is an example of homicide that is not murder. Proof of the unlawful act of “assault” coupled with the death caused by the unlawful act, is sufficient to prove manslaughter.
For Ms. Herchak, accidentally dropping the infant was not an unlawful act. It was an accident. If this is true, she is not guilty of manslaughter.
Assuming her explanation is true, how did she comply with s. 606(1.1) of the Criminal Code of Canada?
The answer is simple: she effectively entered a “no contest” guilty plea to avoid the more serious consequence of a life sentence flowing from a murder conviction. As I have previously said, it would be hard for any person – even an innocent one – to risk a life sentence.
a human system
There are two important takeaways from the nolo contendere discussion. Firstly, though s. 606(1.1) is compatible to most guilty pleas, the reality is that people accused of crime in Canada will often short circuit the process for the purpose of entering what is effectively a “no-contest” guilty plea. Ofteimes, this is done to avoid the more serious jeopardy of conviction after trial. Secondly, anybody who believes there are not wrongly convicted people rotting in Canadian prisons has a dreamy perception of our criminal justice system.
Our system of justice is a human system. Every lawyer is different. Every judge is different. Every witness is different. Every accused is different. With these differences come differences in how cases are investigated, prosecuted, defended and adjudicated. Two judges hearing the exact same evidence could dramatically disagree on the outcome of a case. Though “proof beyond a reasonable doubt” is a principle that should find consistent application from one case to the next, the reality is that despite this onerous standard of proof, some judges convict much more often than others. The legal perception of Charter values also changes from one person to the next. For some the integrity of the Canadian Charter of Rights and Freedoms is sacrosanct, for others, it seems as if the Charter is viewed as more of an impediment to swift justice than to sacred, rights-based process. Fixed with this knowledge, I understand why Shelby Herchak apparently decided not to take the risk of litigating her case at trial.
failed checks and balances?
To me, the real question is whether the checks and balances failed Ms. Herchak. For if it is true that the Crown was aware of other experts questioning Dr. Matsches’ findings and if Matshes' findings were, as Judge Gregg Lepp previously stated to the CBC, “useless to the prosecution”, then how did the Crown accept a guilty plea to homicide when it had very good reason to believe that the “manner of death” was “undetermined”?
Shelby Herchak has asked a very good question:
“Why would you just shuffle the paperwork deep down and like, destroy somebody’s life”?
According The Fifth Estate, the exhibits filed in Ms. Herchak’s case included an agreed statement of facts referencing Dr. Matshes’ findings, making no mention of the expert panel review of his work. Ms. Herchak’s criminal defence lawyer accepted those findings and stated at the time that he was satisfied with the results. Of course, if he didn’t know about disclosure that could have exonerated his client, it may not be all that surprising that he was “satisfied with the results”. One can hardly fault him for being satisfied with results when he didn't know those results were in question.
Interestingly, though Judge Greg Lepp stepped out from Judge’s Chambers to comment on the Chiniquay case, he cited the “ongoing external counsel review” as the reason for declining comment in this most recent instalment focussing on Ms. Herchak. To be fair to Judge Lepp, I actually don’t know the timing as to when he stepped out from Judge’s Chambers and his awareness about the external review.
Whatever the case, questions are lingering.
It appears The Fifth Estate is not going to let its media hand off the jugular. Like many Calgary criminal lawyers (and I am sure some police and prosecutors) I am very interested in how this controversy will conclude. How long it will take is anybody's guess.
IF YOU HAVE BEEN CHARGED WITH ANY CRIMINAL OFFENCE, CALL FOR A FREE CONSULTATION
Return to Blog