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Clayton Rice's most informative, highly relevant Blog, can be found at:
https://www.claytonrice.com/onthewire/
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PASSAGE ONE OF THE DAY: "On May 30, 2011, Dr. Evan Matshes conducted the autopsy. He concluded that Iyanna’s death was caused by drowning. But in the Certificate of Medical Examiner, he reported that the manner of death was “undetermined”. On May 30 and 31, 2011, RCMP investigators met with Dr. Matshes. He said the bruising on the child’s head was “newish”; the injuries “make the whole story of what happened questionable”; and, it would be unusual for a fall to only result in head injuries. Police notes revealed that Dr. Matshes told them, if he was asked to give evidence in court, he would say “[t]his is a child who has been injured by another person in the last couple of days”. A year later, in late May 2012, the RCMP was advised by Alberta Justice that a review had been undertaken of cases in which Dr. Matshes performed autopsies including Iyanna Teeple’s case. The police were told, if there were any concerns about “the potential for a wrongful conviction”, to contact the author of that correspondence. Although the RCMP communicated this information to the assigned prosecutor in Cranbrook, Alberta Justice was subsequently advised that it was the intention of the prosecutor to have Dr. Matshes’ work reviewed by a pathologist in British Columbia. These communications were not disclosed to Ms. Bouvette’s lawyer."
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PASSAGE TWO OF THE DAY: "On August 10, 2012, Dr. Anny Sauvageau, the Chief Medical Examiner of Alberta, sent an email to the prosecutor with an attached peer review form pertaining to the post mortem examination of Iyanna performed by Dr. Matshes. Dr. Sauvageau said this: “I don’t agree that there is any ground, on the autopsy findings alone, to support that this is an inflicted trauma. The opinions expressed to [Deputy Regional Crown Counsel] are disturbing and clearly unreasonable.” In the peer review form, Dr. Sauvageau agreed that “the opinions of Dr. Matshes regarding the manner and cause of Iyanna’s death are reasonable.” She concluded, however, that the verbal opinions attributed to Dr. Matshes by the police and Deputy Regional Crown Counsel were “unreasonable”. She reiterated that there was insufficient evidence in the autopsy findings to support a conclusion of “inflicted trauma”. On August 17, 2012, Ms. Bouvette’s lawyer received a copy of the the peer review form."
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PASSAGE THREE OF THE DAY: "On August 29, 2012, the prosecutor was again advised by Alberta Justice that questions had been raised about “the reasonableness of [Dr. Matshes’] conclusions in many cases, including the Teeple case”, and a review of his work in Alberta was being conducted. The information was sent to the prosecutor “so that she can properly prosecute her case and make disclosure to the defence.” That communication was never disclosed to Ms. Bouvette’s lawyer. Three weeks later, the preliminary inquiry during which Dr. Matshes testified was concluded and Ms. Bouvette was committed to stand trial on the charge of second degree murder. On December 13, 2012, the prosecutor’s office in Cranbrook received a package of documents from Alberta Justice that contained “additional disclosure” including the results of the external peer review committee and correspondence from Dr. Matshes to the Alberta Minister of Justice. Dr. Matshes had sought the opinions of Dr. Ross Zumwalt, the Chief Medical Investigator for the State of New Mexico, and Dr. Stephan Cina, another pathologist in the United States. Dr. Zumwalt “strongly disagreed” with the views of Dr. Sauvageau and Dr. Cina “expressed puzzlement” with Dr. Sauvageau’s position. The correspondence also contained Dr. Matshes’ speculation that the “vindictive nature” of Dr. Sauvageau’s peer review report “stemmed from his refusal to support her pursuit of the Chief Medical Examiner position in Alberta”. None of these documents were disclosed."
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COMMENTARY: 'The Story of Tammy Bouvette,' by Calgary Lawyer Clayton Rice K.C., published on May 23, 2023. (Clayton Rice is a Calgary criminal lawyer specializing in drug cases, white collar crime and regulatory offences. He has been counsel in a broad range of cases before all courts of the Province of Alberta, the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. He was a founding member of the Criminal Trial Lawyers’ Association and has frequently participated as a lecturer in legal education programs. He has been an instructor in Trial Advocacy at The University of Calgary, Faculty of Law, and has lectured in criminal law at the Alberta Bar Admission Course, the Legal Education Society of Alberta and the Canadian Bar Association.)
- GIST: "Marginalized, overwhelmed and intellectually challenged. That is how three Canadian judges described a woman who accepted a powerful inducement held out by the state when she pleaded guilty ten years ago to causing the death of a child in her care by criminal negligence. It was a better bet than risking a trial for second degree murder. Although the conviction of Tammy Bouvette has now been overturned as a miscarriage of justice the prejudice she sustained is irreparable.
1. Introduction
On April 12, 2023, the British Columbia Court of Appeal released the unanimous opinion indexed as R. v. Bouvette setting aside the conviction and entering a judicial stay of proceedings. The panel concluded that a new trial would be an abuse of process. (here) Ms. Bouvette had sought the admission of fresh evidence on the appeal to establish: (a) material nondisclosure by the Crown and the police; and, (b) a reasonable possibility that she would not have pleaded guilty if the disclosure violations had not occurred. Although the ruling on the remedial options is important, involving the alternatives of whether to enter an acquittal, order a new trial or enter a stay of proceedings, I will focus in this post on the disclosure issue that emerged in the context of a controversy over the evidence of the pathologist who conducted the autopsy. The appeal emerged against the backdrop of the McKinnon Report (2022) that addressed concerns about medical examination reports produced by Dr. Evan Matshes, a former Assistant Chief Medical Examiner in Alberta. (here and here)
2. The Tragedy of Iyanna Teeple
On May 26, 2011, Ms. Bouvette was babysitting Iyanna Teeple, a nineteen month old child. At some point in the late morning, she left the child unattended in a bathtub. At 11:30 a.m. Ms. Bouvette called 911. She was attempting resuscitation when the first responders arrived. Iyanna was not breathing. Her heartbeat was revived later at the East Kootenay Regional Hospital in Cranbrook, B.C. She was then airlifted to Calgary Children’s Hospital where she died on May 28, 2011. There was no significant forensic evidence found at the scene.
(a) Statements to the Police
Ms. Bouvette gave “somewhat inconsistent” accounts of the length of time Iyanna was left unattended in the bathtub. She told a first responder that she “turned away” and discovered Iyanna underwater when she looked back. She told another first responder that she left Iyanna unattended “only for a minute” to get some shampoo. And she told a police officer at the scene that she “turned away to grab some shampoo” and turned back to “discover the child face first in the water.” Ms. Bouvette then gave four “formal statements” to the police.
On May 26, 2011, she told the police she briefly turned away to get some shampoo and, when she turned back, Iyanna was face down in the water and unconscious. Later, she admitted that she left the bathroom to clean up some water spilled by one of her children and returned to find Iyanna in distress in the bathtub. She was away from the bathroom “just for that second”. On June 6, 2011, Ms. Bouvette made the second statement that was “largely consistent” with the first. She added, however, that one of her children “sometimes hit Iyanna with a toy.”
On June 8, 2011, in the third statement, Ms. Bouvette described putting Iyanna in a booster seat on a chair in the kitchen. She left and, when she returned, Iyanna had fallen to the floor. There was a red mark on her forehead. She then placed the child in the bathtub. Her account of how long she was away from the bathroom was consistent with the latter portion of the first statement. On June 14, 2011, Ms. Bouvette made the fourth statement described by the panel as “the most incriminating version”. She said the length of time she left Iyanna unattended was “maybe like…five minutes”. The statement included a polygraph test. She agreed to take the test because she was told “everything will be over if I take the test.” Some hours into the interview, Ms. Bouvette said she was unaware the polygraph examiner was a police officer. She was feeling unwell and expressed suicidal ideation. The Crown conceded that voluntariness of the fourth statement could not be proved and it was inadmissible.
(b) The Undisclosed Information
On March 20, 2011, approximately two months before Iyanna was placed in the care of Ms. Bouvette, she was hospitalized at the East Kootenay Regional Hospital for three days for a suspected viral infection of the brain. The clinical records reflected that she presented with “a sudden onset of loss of balance and hypertonia”. She was noted to be “arching and flopping backwards” and diagnosed with post-viral cerebritis. She improved by the time of discharge on March 23, 2011, but still had mild symptoms of ataxia, a lack of muscle coordination and control. The clinical records were never disclosed by the RCMP to the prosecutor or Ms. Bouvette’s lawyer.
On May 30, 2011, Dr. Evan Matshes conducted the autopsy. He concluded that Iyanna’s death was caused by drowning. But in the Certificate of Medical Examiner, he reported that the manner of death was “undetermined”. On May 30 and 31, 2011, RCMP investigators met with Dr. Matshes. He said the bruising on the child’s head was “newish”; the injuries “make the whole story of what happened questionable”; and, it would be unusual for a fall to only result in head injuries. Police notes revealed that Dr. Matshes told them, if he was asked to give evidence in court, he would say “[t]his is a child who has been injured by another person in the last couple of days”.
A year later, in late May 2012, the RCMP was advised by Alberta Justice that a review had been undertaken of cases in which Dr. Matshes performed autopsies including Iyanna Teeple’s case. The police were told, if there were any concerns about “the potential for a wrongful conviction”, to contact the author of that correspondence. Although the RCMP communicated this information to the assigned prosecutor in Cranbrook, Alberta Justice was subsequently advised that it was the intention of the prosecutor to have Dr. Matshes’ work reviewed by a pathologist in British Columbia. These communications were not disclosed to Ms. Bouvette’s lawyer.
On August 10, 2012, Dr. Anny Sauvageau, the Chief Medical Examiner of Alberta, sent an email to the prosecutor with an attached peer review form pertaining to the post mortem examination of Iyanna performed by Dr. Matshes. Dr. Sauvageau said this: “I don’t agree that there is any ground, on the autopsy findings alone, to support that this is an inflicted trauma. The opinions expressed to [Deputy Regional Crown Counsel] are disturbing and clearly unreasonable.” In the peer review form, Dr. Sauvageau agreed that “the opinions of Dr. Matshes regarding the manner and cause of Iyanna’s death are reasonable.” She concluded, however, that the verbal opinions attributed to Dr. Matshes by the police and Deputy Regional Crown Counsel were “unreasonable”. She reiterated that there was insufficient evidence in the autopsy findings to support a conclusion of “inflicted trauma”. On August 17, 2012, Ms. Bouvette’s lawyer received a copy of the the peer review form.
On August 29, 2012, the prosecutor was again advised by Alberta Justice that questions had been raised about “the reasonableness of [Dr. Matshes’] conclusions in many cases, including the Teeple case”, and a review of his work in Alberta was being conducted. The information was sent to the prosecutor “so that she can properly prosecute her case and make disclosure to the defence.” That communication was never disclosed to Ms. Bouvette’s lawyer. Three weeks later, the preliminary inquiry during which Dr. Matshes testified was concluded and Ms. Bouvette was committed to stand trial on the charge of second degree murder.
On December 13, 2012, the prosecutor’s office in Cranbrook received a package of documents from Alberta Justice that contained “additional disclosure” including the results of the external peer review committee and correspondence from Dr. Matshes to the Alberta Minister of Justice. Dr. Matshes had sought the opinions of Dr. Ross Zumwalt, the Chief Medical Investigator for the State of New Mexico, and Dr. Stephan Cina, another pathologist in the United States. Dr. Zumwalt “strongly disagreed” with the views of Dr. Sauvageau and Dr. Cina “expressed puzzlement” with Dr. Sauvageau’s position. The correspondence also contained Dr. Matshes’ speculation that the “vindictive nature” of Dr. Sauvageau’s peer review report “stemmed from his refusal to support her pursuit of the Chief Medical Examiner position in Alberta”. None of these documents were disclosed.
3. The Legal Test
It is uncontroversial that a defendant has a constitutional right in Canada to disclosure of the state’s case. Pre-trial disclosure by the Crown and the police is part of the right to make full answer and defence under s. 7 of the Charter of Rights. An appellant, like Ms. Bouvette, who pleaded guilty may assert on appeal that the plea was not valid and the conviction was a miscarriage of justice. In R. v. Wong, the Supreme Court of Canada clarified the twofold test for vacating a guilty plea. (here) First, was the defendant misinformed about sufficiently serious information? Second, did the lack of information result in prejudice?
On the first branch of the test, the theory underpinning the initial charge of second degree murder rested on Dr. Matshes’ opinion that the injuries he observed were intentionally inflicted. As Dr. Matches said to the police, “[t]his is a child who has been injured by another person in the last couple of days”. The report of the external peer review panel would have been useful to the defence in “pursuing further investigations, retaining experts with an opposing point of view, and cross-examining Dr. Matshes.” The undisclosed correspondence of Dr. Zumwalt and Dr. Cina was relevant to the possible animus between Dr. Matshes and Dr. Sauvageau. That information might have formed the foundation for an argument that Dr. Matshes was disqualified from giving expert opinion evidence in this case. And the failure to disclose the hospital records concerning Iyanna’s treatment for a brain virus deprived Ms. Bouvette of the opportunity to explore the physiology of post-viral cerebritis with a defence expert and whether it could have played a continuing role at the time of death.
On the second branch of the test, Ms. Bouvette filed an affidavit in which she asserted that she would not have pleaded guilty if she had been aware of the undisclosed information and its potential impact on the strength of Dr. Matshes’ opinion. “I felt like I had no choice but to plead guilty,” she said. “I wanted to get out of jail and I was facing 25 years.” Her trial lawyer, who advised her to take the deal, deposed in an affidavit that, “[i]f I had been aware of other file materials, including reports or documents impugning the reliability of the expert opinion [of] Dr. Matshes, it is likely that I would have advised Ms. Bouvette differently”. Although the Crown did not challenge the subjective assertions of Ms. Bouvette or her lawyer, it was still necessary for the panel to conduct a prejudice inquiry. Although the inquiry was purely subjective to Ms. Bouvette in light of “the fundamentally subjective and deeply personal nature of a decision to plead guilty”, the subjective claim may be assessed objectively to test its veracity against the standard of reasonable possibility. (here) In scrutinizing Ms. Bouvette’s subjective claim against the objective circumstances, the panel concluded there was “no reason to doubt its veracity.”
4. Conclusion
On October 24, 2011, Ms. Bouvette was charged with second degree murder. She then relapsed into drug abuse and lost custody of her children. Two years after Iyanna’s death, and faced with what the panel described as “a terrible dilemma”, she accepted “a powerful inducement” held out by the Crown and pleaded guilty to the less serious charge of criminal negligence causing death. Three days later she was sentenced to twelve months imprisonment, a sentence that was served years before the appeal. She was assaulted when jailed and labeled a “baby killer”. And since her release, she has continued to struggle with homelessness, poverty, social isolation, and physical and mental challenges. (here) She attempted suicide. And through it all, finally, someone has now said to Tammy Bouvette – we believe you."
The entire commentary can be read at:
the-story-of-tammy-bouvette
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/120008354894645705/47049136857587929
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.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-123488014
