PASSAGE OF THE DAY: "In 2020, The Fifth Estate reported that multiple defendants facing murder charges alleged they were not shown the peer review that raised questions about evidence in their cases. In response to The Fifth Estate investigation, the BC Prosecution Service appointed special prosecutor Marilyn Sandford to investigate its role in the Bouvette case. Sandford announced in 2021 she had uncovered a likely miscarriage of justice, and recommended Bouvette appeal her conviction. Even though that independent expert peer review had ultimately been set aside by the court, Bouvette's lawyers argued in her appeal the failure to provide it to her defence was the problem. "The failure to disclose in this case is nothing less than egregious," they wrote. The Court of Appeal panel of justices agreed, and said that it was not impugning Matshes's professionalism, but rather made its decision on the Crown's failure to disclose the report and other evidence. Bouvette was "unaware of the results of the external peer review overseen by Alberta Justice, and the possibility that the review could be the source of an alternative opinion refuting the damning one offered by Dr. Matshes, or at least undermining the reliability of the Crown's key witness," the justices wrote."
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PASSAGE TWO OF THE DAY: "Sandford found that the Crown did not disclose the peer review report, additional evidence that raised concerns with some of Matshes's opinions, including how Matshes had been barred from testifying in Alberta court cases, and Iyanna Teeple's past medical records, which showed she had recently suffered a brain virus. Sandford also found the defence was not provided with Bouvette's first interview with police, in which Bouvette showed an officer how she was bathing the toddler and turned around to reach for shampoo. "When she turned back, the baby was face-first," court records said. The B.C. Court of Appeal quashed Bouvette's conviction and ordered a judicial stay of proceedings. (Ben Nelms/CBC) Sandford wrote to the Court of Appeal that she recommended an acquittal as a result. "[Bouvette] has served her full sentence, the conviction is a miscarriage of justice, the heart-rending consequences of the miscarriage of justice to the appellant are set out in her affidavit," Sandford wrote."
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The B.C. Court of Appeal has quashed the conviction of a British Columbia woman jailed for the 2011 death of a child in her care.
The ruling released Wednesday called Tammy Bouvette's conviction for criminal negligence causing death "the product of a miscarriage of justice," and ordered a stay of proceedings because retrying her case would be an "abuse of process."
Bouvette, 39, was originally charged with second-degree murder in the death of 19-month-old Iyanna Teeple in Cranbrook, B.C.
The Court of Appeal noted that she pleaded guilty in 2013 to the lesser charge without the Crown disclosing it had evidence that raised questions about the case's pathology evidence.
"The conviction must be set aside as the product of a miscarriage of justice, as the evidence and circumstances establish a reasonable possibility that the appellant would not have pleaded guilty to criminal negligence causing death had full disclosure been made," the panel of judges said in their written decision posted online.
Bouvette, then 28, had been babysitting the girl when she became unresponsive in the bathtub. The toddler was flown to a Calgary hospital, where she later died.
Bouvette, who has maintained she did not abuse or kill the child, was charged with second-degree murder. After pleading guilty to criminal negligence, she was sentenced to 12 months in jail. She told the CBC's The Fifth Estate later that she had wanted to avoid a lengthier prison sentence for a murder charge.
The case became the subject of an investigation by The Fifth Estate in 2020 after CBC journalists uncovered a report that criticized pivotal pathology evidence in the Crown's case against Bouvette.
Her former defence lawyer told The Fifth Estate that he had not received that report from the Crown during the prosecution.
Crown failed to disclose, court rules
The B.C. Court of Appeal has determined that the BC Prosecution Service (BCPS) failed to disclose to her defence lawyers several items of key evidence, including that report, which supported Bouvette's claim she had not hurt or neglected the child.
"To be clear, we make no finding of bad faith or malice on the part of the Crown. But neither can we ignore that the disclosure breaches were not isolated or confined to information of dubious value to the appellant," the judges wrote.
"As a consequence of material non-disclosure, the appellant was deprived of the opportunity to make an informed decision about how to plead apprised of the strengths and weaknesses of the case against her on fundamental issues."
A spokesperson for the prosecution service declined an interview Wednesday with The Fifth Estate and sent a statement saying the agency has implemented a series of checks and balances to prevent future disclosure problems.
"Our failings in that regard … were significant and resulted in a miscarriage of justice," Dan McLaughlin said in an email. "The BCPS acknowledges mistakes were made.”
Kristy Neurauter, one of Bouvette's lawyers, told The Fifth Estate Wednesday she believes "it doesn't really matter what the BC Prosecution Service does moving forward."
"The damage has been done and it's irreparable," she said. "There's nothing that they could do to give back her life."
Neurauter said she tried to reach Bouvette before the decision came out, but could not.
Bouvette is homeless and primarily stays in shelters in the New Westminster area.
Her lawyers said they will try to discuss next steps with Bouvette but they felt a financial settlement "can't repair the damage that has been caused."
Court notes life-altering effects
The panel of justices acknowledged the life-altering consequences Bouvette faced after being charged with second-degree murder and factored that into their decision to quash her conviction.
In their decision, they noted she relapsed and became addicted to drugs again, lost custody of her children and was assaulted in jail having been perceived to be a "baby killer."
"Since being released from custody, she has struggled with addiction issues, homelessness, poverty, social isolation, and physical and mental health challenges," the decision states.
"In addition, [Bouvette] has served the entirety of her sentence. Ordering a new trial in these circumstances would be unjust."
Defence suggests Crown had 'tunnel vision'
Neurauter said she and the legal team were disappointed the justices did not order an outright acquittal, which they said would have been declarative that Bouvette was innocent of a crime.
Neurauter said she believes the judgment shows the Crown prosecutors at the time incorrectly excluded evidence that countered their case.
"Given that … a significant body of evidence that went contrary to their case was not disclosed, there is certainly a very reasonable if not strong inference that this was done intentionally," Neurauter's co-counsel, Vanessa de Jong, said. "Certainly there was tunnel vision on behalf of the Crown that was displayed here."
She said she believes that had they adequately considered all the available evidence, they would not have laid any charges against Bouvette.
The Fifth Estate previously interviewed the investigating RCMP officer, who has since retired. Cpl. Chris Faulkner told The Fifth Estate the police originally believed the death to be a tragic accident.
Dr. Evan Matshes, the Calgary medical examiner at the time who performed the toddler's autopsy, told prosecutors he had identified bruising that was "typical of child abuse" and said there "no benign" explanation for some of her injuries.
That medical opinion changed the course of the investigation, Bouvette's legal team argued in their appeal.
"With respect to Dr. Matshes, his opinion was the most important part of the Crown's case," the appeal states.
Pathology opinions scrutinized
During Bouvette's prosecution, the forensic pathologist's opinions would come under scrutiny in Alberta, where the Justice Ministry ordered an external panel of three expert forensic pathologists review a selection of his death investigations, including that of Iyanna Teeple.
Those experts wrote a report called a "peer review" in which they said Matshes's opinions on the toddler's death regarding intent and child abuse were unreasonable.
The independent medical experts concluded that in their opinion, Matshes had arrived at "unreasonable" conclusions in 13 death investigations, several of which involved criminal matters.
Matshes, who by that time had left his Calgary medical examiner job, sued the Alberta government for defamation in a lawsuit that remains before the court, and separately challenged the panel's report in court.
An Alberta Court of Queen's Bench justice ruled in 2014 that the panel's review was not fair to Matshes and that he had not been given enough time to respond or provide additional materials.
Special prosecutor appointed
In 2020, The Fifth Estate reported that multiple defendants facing murder charges alleged they were not shown the peer review that raised questions about evidence in their cases.
In response to The Fifth Estate investigation, the BC Prosecution Service appointed special prosecutor Marilyn Sandford to investigate its role in the Bouvette case.
Sandford announced in 2021 she had uncovered a likely miscarriage of justice, and recommended Bouvette appeal her conviction.
Even though that independent expert peer review had ultimately been set aside by the court, Bouvette's lawyers argued in her appeal the failure to provide it to her defence was the problem.
"The failure to disclose in this case is nothing less than egregious," they wrote.
The Court of Appeal panel of justices agreed, and said that it was not impugning Matshes's professionalism, but rather made its decision on the Crown's failure to disclose the report and other evidence.
Bouvette was "unaware of the results of the external peer review overseen by Alberta Justice, and the possibility that the review could be the source of an alternative opinion refuting the damning one offered by Dr. Matshes, or at least undermining the reliability of the Crown's key witness," the justices wrote.
Matshes sued the CBC for its 2020 reports, alleging it had falsely reported his work led to several miscarriages of justice. CBC has filed a statement of defence and the case is still before the courts.
Police interview, medical information not given to defence
Sandford found that the Crown did not disclose the peer review report, additional evidence that raised concerns with some of Matshes's opinions, including how Matshes had been barred from testifying in Alberta court cases, and Iyanna Teeple's past medical records, which showed she had recently suffered a brain virus.
Sandford also found the defence was not provided with Bouvette's first interview with police, in which Bouvette showed an officer how she was bathing the toddler and turned around to reach for shampoo. "When she turned back, the baby was face-first," court records said.
The B.C. Court of Appeal quashed Bouvette's conviction and ordered a judicial stay of proceedings. (Ben Nelms/CBC)
Sandford wrote to the Court of Appeal that she recommended an acquittal as a result.
"[Bouvette] has served her full sentence, the conviction is a miscarriage of justice, the heart-rending consequences of the miscarriage of justice to the appellant are set out in her affidavit," Sandford wrote.
'I can't smile anymore'
In that written affidavit, Bouvette described the effect the conviction has had on her life.
She said she has overdosed repeatedly and her mental health deteriorated to the point that she attempted suicide several times. She noted how her children were bullied at school following media coverage of the allegations against her.
"I am mentally messed up and traumatized," she wrote. "I have very bad depression and I can't smile anymore."
Renee Teeple, the toddler's mother, previously told The Fifth Estate she had believed her daughter died accidentally, and on Wednesday said she is happy the appeal is now closed.
"It's the result that I wanted so I'm happy," she said. "I forgave her a long time ago."
When The Fifth Estate tracked down Bouvette for its 2020 investigation, she said she "loved that little girl like my own" and that she would not have taken the plea deal had she been aware of the conflicting pathology report.
"Shame on them for not doing their job right," Bouvette said at the time. "It has taken everything from me: my freedom, my whole self, everything.""
https://www.cbc.ca/news/canada/bouvette-court-of-appeal-decision-1.680780
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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