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A Defence lawyer's perspective on issues in criminal law
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The Spectre of Wrongful Conviction: The Importance of Disclosure in our Justice System
Posted in HOMICIDE, Tagged Criminal Defence BlogJanuary 20, 2020
Butch Chiniquay was charged with second degree murder in the death of his girlfriend in 2011. He was not only sentenced to 5 years in prison but may have apologized for a crime he did not commit.
According to Calgary Herald reporter Daryl Slade, Chiniquay pled guilty to the lesser included offence of manslaughter. He told the Court that the death was an “accident” and that he “really loved her so much”.
"Chiniquay had faced a more serious charge of second degree murder,…but the Crown had some serious issues on the evidence to support that charge partly because [the deceased] had suffered injuries to her face from a car accident two days before she was killed”. Dr. Evan Matches reportedly did not agree that the blunt force injuries could be attributed to the car accident.
the FIFTH ESTATE REPORT
According to a recent Fifth Estate investigative report, it turns out the Crown may not have disclosed all of the serious issues prevailing upon its case to Chiniquay’s Calgary criminal lawyer. According to CBC's Fifth Estate, Alberta Justice had at least 14 cases involving Dr. Evan Matches reviewed by a panel of experts who found problems in 13 of them. Questions have arisen as to whether Alberta Justice disclosed these findings to a number of accused who were facing serious charges.
Mr. Chiniquay was not the only accused who served jail time on the basis of what the review panel called “unreasonable findings”. Shelby Herchak was sentenced to 5 ½ years in jail after she “gave up” and accepted a plea bargain from murder to manslaughter. “I couldn’t do it anymore”, she said. “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". Her logic was not unreasonable.
why a not guilty accused might plead guilty
Criminal defence lawyer, James Lockyer, was interviewed by the Fifth Estate and asked about why a person would plead guilty to a crime they did not commit. Lockyer advised that this is not unusual. "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.”
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.
section 606(1.1) of the criminal code
Now, I want to be fair to the Crown, Court and defence lawyers. It is not unusual for the Crown to plea bargain cases based upon evidential frailties. It also not unusual for defence lawyers to recommend plea bargains as a result of the uncertainties of trial. Judges are often left in the dark about guilty pleas and must as a mater of professional deference and institutional courtesy place great faith in the actions of Crown counsel and defence lawyers.
Also, all participants in criminal justice take solace in section 606(1.1) of the Criminal Code of Canada. This section requires that anybody pleading guilty satisfy the following criteria:
(1) The guilty plea must be voluntarily.
(2) The guilty plea must be based on an acceptance of the essential elements of the offence.
(3) The person pleading guilty must understand the consequences of the plea.
(4) The accused must understand that the sentencing judge is not bound by any proposal presented by the defence, accused or Crown.
I expect that both Ms. Herchak and Mr. Chiniquay acknowledged section 606(1.1) when they entered their guilty pleas.
was the disclosure suppressed?
When disclosure is suppressed, however, I am left to wonder whether an accused’s guilty plea is truly voluntary.
In the case of the review of Dr. Matches’ work, it was certainly incumbent upon Alberta Justice to not only disclose this material but to be proactive in bringing the substance of the disclosure to the attention of the accused and/or his or her lawyer. To borrow the words of Mr. Lockyer, “its not even a question that you should have to give any thought too” (Fifth Estate Report).
With respect to the information provided in the Fifth Estate report, however, I make no comment as to whether disclosure was actually provided, suppressed or not. In Ms. Herchak’s case, there was no comment from her defence lawyer or the Crown. In Mr. Chiniquay’s case, the Fifth Estate report did not confirm whether the disclosure was provided or not. Mr. Chinquay’s lawyer said it wasn’t disclosed. He questioned "why" he was seeing the disclosure for the first-time, apparently years after his client was sentenced. The Crown responded that Mr. Chiniquay's defence lawyer “…was aware that "additional disclosure regarding Dr. Matshes was available".
As an aside, I am not sure that awareness of the presence of additional disclosure (the contents of which are not identified) amounts to the same thing as being told about the significance of the disclosure. In my view, if Alberta Justice only advised Chiniquay's lawyer that additional disclosure was available “regarding Dr. Matches” and did not advise about the significance of the disclosure, they may have some explaining to do. That said, I cannot speculate based upon the information within this CBC report and therefore decline to offer any further commentary beyond a brief overview about why disclosure is so important.
the importance of disclosure
R. v. Stinchcombe, , 3 S.C.R. 326 (S.C.C.) established the well known principle that the Crown has a legal duty to disclose all relevant information, reasonably within its possession, to the defence. As the Court stated, “[t]he fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but property of the public to be used to ensure that justice is done”.
Stinchcombe supra reminds us that transgressions for breaching the duty to disclose constitutes a “very serious breach of legal ethics” and such transgressions are reviewable by a judge. Finally, Stinchcombe instructs that “[t]he trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence…”.
In R. v. Carosella,  1 S.C.R. No. 80 (S.C.C.) the majority of the Supreme Court of Canada effectively summarized the law with respect to non-disclosure in the following terms:
An accused who alleges a breach of his right to make full answer and defence as a result of non-disclosure or non-production is not required to show that the conduct of his defence was prejudiced. The question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached. The extent to which the Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of a Charter analysis.
The foundation for the Crown's obligation to produce material which may affect the conduct of the defence is that failure to do so would breach the accused's constitutional right to make full answer and defence. The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. The breach of this principle of fundamental justice is in itself prejudicial. It is immaterial that the right to disclosure is not explicitly listed as one of the components of the principles of fundamental justice. The components of the right cannot be separated from the right itself. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter. It follows that if the material which was destroyed meets the threshold test for disclosure or production, the accused's Charter right was breached without the requirement of showing additional prejudice.
The takeaway from Stinchcombe and other cases is that disclosure is seminal to the accused's right to make full answer and defence. If Mr. Chiniquay or Ms. Herchak were deprived of the disclosure relating to the review panel bringing Dr. Matches’ work into question, they were arguably deprived of their right to make full answer and defence. Even if they would have done the plea bargain from murder to manslaughter notwithstanding this obviously relevant disclosure, had they been aware of its existence, it is quite probable that they may have secured an even more favourable sentence. In other words, it is possible that Mr. Chiniquay or Ms. Herchak may not have pled guilty at all and if they did, there is a reasonable prospect that the sentence imposed would have been less than the sentence they received.
Whatever the case, this Fifth Estate story has illuminated the spectre of wrongful conviction for a pair of people convicted of crime in Alberta. The question is, who is at fault? Maybe nobody? Maybe everybody? With the shadow of this report hanging over Alberta Justice, its integrity is unquestionably at issue. In these circumstances, the public deserves answers. In the view of this Alberta criminal defence lawyer, so do Butch Chiniquay and Shelby Herchak.
David G. Chow
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