June 12, 2025 • 22 mins
What happens when crucial evidence is withheld from the defence in a murder case? The devastating consequences unfolded in a tragic BC case where a woman's life was completely shattered after being wrongfully convicted in connection with a toddler's drowning death.
The Supreme Court of Canada recently ordered an acquittal for a woman who served a year in prison after pleading guilty to criminal negligence causing death. She made this plea without knowing that Crown prosecutors had withheld 140 pages of material questioning the reliability of the medical examiner whose opinions were central to the case against her. The consequences went far beyond her prison sentence—she lost custody of her four children, faced community ostracism, developed drug addiction, and eventually became homeless.
This miscarriage of justice highlights the critical importance of proper evidence disclosure in our legal system. Even the family of the deceased toddler supported the acquittal, recognizing the compounded tragedy when justice fails. Adding a bizarre twist to this case, the Alberta government recently issued an apology to the medical examiner, stating "there have been no miscarriages of justice" connected to his work - apparently contradicting the findings of both the British Columbia Court of Appeal and the Supreme Court of Canada.
In another revealing case, a permanent resident faces deportation after 34 years in Canada due to impaired driving convictions. Despite police violating his rights by video recording him using the toilet in his cell (which the judge acknowledged warranted some sentence reduction), the court declined to artificially lower his sentence below the six-month threshold that triggers deportation proceedings. With 32 driving prohibitions on his record, the judge was "flabbergasted" that the Crown wasn't seeking maximum penalties.
These cases offer crucial warnings: for legal professionals about proper evidence handling, for permanent residents about pursuing citizenship when eligible, and for law enforcement about respecting constitutional rights even when dealing with repeat offenders. When our justice system fails, the human cost can be immeasurable.
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Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for a regular segment, joined as
always by Barrister andSolicitor, with Mulligan defence
lawyers.
Michael Mulligan, with LegallySpeaking on CFAX Afternoon.
Michael, how are we doing?
Michael Mulligan (00:09):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Interesting things on the agenda Up.
First I'm reading the SupremeCourt of Canada concluding the
Court of Appeals should haveentered an acquittal after
setting aside a conviction of aBC woman in relation to the
death of a baby.
What happened here?
Michael Mulligan (00:26):
Nothing good happened here.
This was just a completetragedy start to finish, and so
it's.
A BC case started out in BC andit involved a woman who had
taken care of another woman whohad taken care of this
19-month-old toddler, I guess,and she'd done that on a number
(00:47):
of occasions.
This was up in Cranbrook backin 2011.
And tragically, the young girlthat she was taking care of died
in the bathtub and the cause ofdeath was determined to be
drowning in the bathtub.
Of death was determined to bedrowning in the bathtub, and
(01:10):
part of the trouble for thiswoman the babysitter, I guess
we'll call her who was chargedeventually with second-degree
murder arose out of variousinconsistent things that she'd
said reporting how this happened, like, for example, when she
called 911, she claimed that shehad just turned her head for a
moment in the bathroom and whenshe looked back, the child had
fallen down in the tub.
(01:30):
And then, in a subsequentstatement to the police, she
said she'd briefly stepped outof the room.
So she gave slightly differentversions of events about what
happened, which caused suspicion, and eventually there was an
autopsy performed by a medicalexaminer from Alberta, and the
medical examiner offered variousopinions about the cause of
death and also opining aboutsome injuries seen on the head
(01:55):
of the toddler who passed away,and it resulted in the woman
being tricked with secondarymurder.
Now, another confounding factorI should say here is that the
mother of the baby or toddleralso revealed that a short
period of time prior to all ofthis, the child had suffered a
viral brain infection and hadbeen hospitalized for it.
(02:18):
So there are some other thingsgoing on that may have
contributed to what happened inthe bathtub.
But this woman who was chargedwith second-degree murder had
what's called a preliminaryinquiry.
It's like a hearing aboutwhether there's enough evidence
to proceed to trial in a seriouscriminal case, and at that
preliminary inquiry this medicalexaminer testified and offered
(02:39):
opinions about things includingan injury on her child's lip,
the cause of drowning and so on,and largely on the strength of
what the medical examiner had tosay at the preliminary inquiry,
the woman was required to standtrial for second-degree murder.
The preliminary inquiry judgedetermined there was enough
evidence to proceed with a trial.
(03:00):
Now the problem started toarise because there had been a
review of some of this medicalexaminer's work done in Alberta
and the Alberta government wroteto the BC, the police and Crown
in BC and they provided 140pages of material detailing the
(03:20):
results of an independent reviewconducted by three other
medical examiners that raisedconcerns about the reliability
of the opinion of this examinerin this case and a series of
other cases, and outlining whatall those were.
And the problem was that theCrown didn't provide all of that
to the defence.
(03:41):
They didn't know that there'dbeen this independent review
calling into question theconclusion drawn by this medical
examiner and in that context,not knowing about those concerns
about the person's opinions,defense agreed to plead guilty
to a charge of criminalnegligence causing death.
(04:03):
And the woman did that and shewas sentenced to a year in
prison, which she served.
And then, several years later,after that all had transpired
and I should say the sentence,according to the Supreme Court
of Canada, had a completelydevastating impact on this
woman's life.
She lost custody of her ownfour children, she was
(04:24):
ostracized from her community,she wound up with a drug
addiction, she became homeless,wound up in poverty, served her
entire sentence, just completelyruined, destroyed her life in
any way, every way imaginable.
And then in British Columbia,some years later, there was a
special prosecutor appointed tolook into the case and the
special prosecutor concluded,realized that the Crown at the
(04:47):
time had withheld theinformation about the medical
examiner, hadn't given it to thedefense, and so that resulted
in the case going before theCourt of Appeal and the Crown in
BC, the special prosecutoragreeing taking the position of
the Court of Appeal.
There was just a terriblemiscarriage of justice in terms
(05:07):
of what happened here.
Of course in criminal casesthere is an obligation, and for
very good reason, that the Crownis required to provide to the
defense evidence and materialthey have which is exculpatory,
like evidence that might showyou might not have done it right
.
They can't just keep thatsecret and it was without that
(05:28):
information that the woman hadpled guilty to this other
offense.
And I should say it'sunderstandable why somebody
might choose to do that in thecircumstances, because a
conviction for murder results ina life sentence.
So if I tell you you're ontrial for murder, if you're
convicted you're in prison,potentially for the rest of your
life, or you complete guilty tothis other offense and go to
(05:49):
jail for a year, it is easy tosee how somebody might pick up
should do so.
On that basis it went to thecourt of appeal and the court of
appeal concluded that indeedthere was a miscarriage of
justice, which is veryinteresting.
I'll come to another postscripton this case in a moment.
They concluded that and thenthe Crown took the position
(06:11):
saying, well, the appropriateremedy would be for the Court of
Appeal to enter an acquittal.
And the way that works is thatthere's a section of the
criminal code dealing with, well, what happens in the court of
appeal, where they determinethat there was a miscarriage of
justice, what should happen, andit's under 686, sub 2 of the
criminal code.
And the court of appeal hasthree options under that section
(06:32):
.
One option is to order a newtrial.
Another option is to enterwhat's called a judicial stay of
proceedings, where the courtjust says that's it, this isn't
going further.
Or the third option is to enteran acquittal.
And at the Court of Appeal,interestingly, the Crown took
the position that theappropriate remedy here would be
an acquittal and said clearlythat, look, if there was a new
(06:55):
trial ordered, the Crown wouldcall no evidence and the result
result would be she would beacquitted.
The Court of Appeal rejectedthat.
And the Court of Appeal said no, no, we're not doing that.
We think that there is otherevidence in this case right,
which could theoretically haveresulted in a jury convicting,
even if you deal with thepotential problems with the
(07:17):
medical examiner's evidence.
They said well, we think it'sthe least possible, so we're not
going to do that, despite theCrown saying no, you should be
acquitting her.
And so that's what went to theSupreme Court of Canada.
And so the Supreme Court ofCanada had to decide what's
appropriate.
How should a court of appealdeal with it where you have the
Crown standing up saying there'sa miscarriage of justice here.
(07:38):
She should be acquitted?
Should the Court of Appealnonetheless just say, well,
we're entering a state ofproceedings?
I mean, on one level they havea similar effect, right, but at
the end of the day the woman hasserved her entire sentence, her
life has been decimated andreally sort of what's at stake
is well, how is that viewed?
Might that help somehow repairher reputation somehow if it's
(08:03):
an acquittal rather than a stay?
And so the Supreme Court ofCanada revisited that issue and
how that section is to beinterpreted, and they concluded
that the appropriate remedy herewas an acquittal Given the
Crown acknowledging there is amiscarriage of justice.
And that's what was found bythe Court of Appeal.
Clearly, and given theproposition that the Crown
saying saying, look, thereshould be an acquittal and if
you order a new trial we wouldcall no evidence and the
(08:26):
immediate result would be aacquittal, right, yeah, and the
supreme court of canada agreed.
The supreme court of canadasaid look, that's what should
have happened here.
There shouldn't be a necessityof going through sort of a pro
forma, ordering a new trial andand then having the Crown stand
up and say we call no evidenceand we invite you to acquit, and
then having another trial judgeacquit that.
(08:46):
Where there's a miscarriage ofjustice and where the Crown is
taking that position inparticular, that would be the
appropriate result If Canada'sdone, for all the good it's
going to do this woman, who'shad her life ruined by how this
case was handled and the failureto provide her or her lawyers
(09:07):
with the information about thisreview of the medical examiner's
opinions.
Now the other fascinatingpostscript about this very same
fact, pattern and case andmedical examiner is the medical
examiner took issue with how hewas treated and he wound up
getting involved in litigationwith the Alberta government and
(09:28):
with the CBC over a.
The CBC did a TV special aboutthis case and that background
and what happened and the it wasthe Fifth Estate, the episode
about it.
And so, fascinatingly, on justin March of this year, the
(09:51):
government of Alberta issued aletter of apology to the medical
examiner saying that he wastreated unfairly.
And he was treated unfairly.
And he was an apology saying,amongst other things in this
apology there have been nomiscarriages of justice in
connection with this doctor'swork, which is just fascinating,
(10:18):
given, of course, we've justhad the BC Court of Appeal and
now the Supreme Court of Canadarendering these decisions on the
very basis that there is amiscarriage of justice.
Now I suppose you could squarethat circle to some extent by
saying well, look, the clearmiscarriage of justice here was
not telling the defense aboutthe independent review by three
other pathologists of thisdoctor's work that clearly on
(10:42):
its own resulted in themiscarriage of justice.
The person just didn't knowwhat was going on and the
potential problems with hisopinion.
Had that happened, of course,you would have then had the
potential, for the defense mighthave then said well, we're not
entering guilty plea to anything.
Your case is premised on this.
We're going to proceed andwe're going to rigorously
challenge and cross-examine thisperson about his opinion, at
(11:02):
which point.
Of course, he would have thenhad an opportunity to be quote
treated fairly in the sense thathe could have then, I suppose,
defended his opinion in court.
And so you've got this justreally interesting scene of
affairs where a woman's life hasbeen ruined by the failure to
provide the information and thedoctor is filed engaged in this
(11:24):
litigation and complaint aboutbeing treated unfairly, which
has resulted in this remarkableapology, saying something which
to, at least on one level,appears to contradict what the
Supreme Court of Canada, bcCourt of Appeal and the special
prosecutor concluded, bearing inmind, I suppose, that a caveat,
which could be the unfairnessor the miscarriage of justice,
(11:45):
could have been not telling them, telling defense about the
conclusion rather thannecessarily the conclusion being
wrong.
Interestingly, the otherpostscript is that the Supreme
Court of Canada points out thatthe family of the deceased is
supportive of the woman beingfound not guilty.
Their view is that that's theappropriate thing here, and you
(12:05):
can just imagine the justcompounded tragedy, right, if
you're the parents of thisdeceased child, finding out not
only having lost your childchild but also now potentially
have had the child's caregiverhaving been, wrongfully, you
know, winding up spending a yearof her life in prison and her
life destroyed over it, right?
(12:26):
No doubt that's completelyunsatisfactory as well.
So their position was that aswell, that she should have been
acquitted.
So just a fascinating case outof BC.
And really the takeaway for allof us involved in the criminal
justice system is you've got tomake sure that you're just
carefully letting the other sideknow all of the evidence that
you've got, and if you don't, itcan just ruin lives start to
(12:50):
finish, and this is an exampleof that.
Now, that's the latest from theSupreme Court of Canada and to
the extent that the acquittalnow, rather than the state of
proceedings, provides somesolace and closure, at the very
least we've got that and themedical examiner has his apology
from the Alberta government.
So that's the latest from theSupreme Court of Canada.
Adam Stirling (13:09):
Legally Speaking will continue in just a moment
on CFAX 1070.
Legally Speaking continues onCFAX 1070.
Joined, as always by MichaelMulligan, barrister and
solicitor, with Mulligan DefenceLawyers.
On CFAX 1070, joined as alwaysby Michael Mulligan, barrister
and solicitor, with MulliganDefense Lawyers.
Michael up next on my agenda.
It says a sentence reductionfor police video recording a man
arrested for impaired drivingwhile using the toilet.
It says, but no furtherreduction to avoid deportation.
(13:33):
There's some layers here?
Michael Mulligan (13:36):
There sure are .
I mean, on one level, this is acase of a burden, and on one
level, you look at it and say,well, first of all, it doesn't
look too remarkable.
To begin with, it was animpaired driving case that
started with the man rear-endinganother vehicle in a fender
bender, and so, at first blush,you look at that and say, well,
this doesn't seem too aggravated.
Nobody was injured.
The problems for this man,though, really relate to both
(14:01):
his immigration status and hisrecord.
First of all, his immigrationstatus.
He's 57 years of age, he'slived in Canada for over 34
years, but he's only a permanentresident.
That's a problem, because, ifyou wind up being guilty of
what's called seriouscriminality, you are subject to
being deported without a hearing, no matter how long you've been
here and whatever yourcircumstances might be, and
(14:24):
that's a good reason why, if youare a permanent resident and
eligible to apply forcitizenship, do so, because you
might find yourself on the outsafter 34 years.
Now the other problem for thisman you still might think how is
this going to turn into quoteserious criminality?
Because one of the ways to getthere is that you need to get a
jail sentence of more than sixmonths or be convicted of
(14:44):
something that could land you inprison for more than 10 years.
So the problem for this man ishe's been a very, very bad
driver for all that period oftime.
He has on his record, accordingto the judge, 32 driving
prohibitions, 16 separate.
This is beyond the 32, 24-hourdriving prohibitions.
(15:05):
Those are usually for alcohol,along with a substantial number
of criminal code, other motorvehicle act infractions, and so
just an incorrigible it lookslike impaired driver, and the
man had a trial where he wasconvicted and sentenced.
There was a new trial orderedafter he'd served 111 days in
jail, and then that brings us tothis case, the trial decision.
(15:29):
The first part of it, or one ofthe issues of the case, was that
after the man was arrested andafter he'd brought to the police
station and after he providedhis breath samples, they kept
the man in cells for some reason.
It was unclear why and when theykept him in cells at the police
detachment.
There they were video recordinghim on a video system where you
could both, I guess, watch itand also it's recorded, and the
(15:51):
video system included a video ofhim.
The toilet, like it's a cellwith a toilet with no nothing
blocking it, and so the videorecording of the man included a
video of him defecating in thetoilet clearly on the video.
Interestingly, there are twoother elements.
One is that there is apparentlya sign, or more than one sign,
(16:14):
notifying people, like in thebooking area, subject to video
recording in the cell right, andapparently there is some policy
whereby they're supposed togive you like a screen or
something if you ask for it touse the toilet, but there's no
indication, no, that you couldget such a screen so you don't
ask for that became illegal yeahyou have to know to ask for it.
Good luck with that.
One right um.
(16:36):
And so the judge found that thevideotaping of the man using
the toilet, uh, constituted aconstitutional breach that had
impacted his dignity,embarrassing him, you know,
showing him in this way,although the judge, and so the
issue then was what's the remedyfor that?
And so the judge rejected aremedy of staying the
(16:58):
proceedings they know this isquite serious, given the man's
record, that's not happeningAlso rejected the idea that
there should be some evidenceexcluded as a result of that,
because really the investigationwas finished, so that wasn't
going to be a remedy.
And so the judge said well,there could be some remedy if
he's convicted, in terms of somereduction in the sentence as a
remedy for this toiletvideotaping.
Well, the man was convicted.
(17:19):
And then the issue for thejudge was the man's submission
was look, don't send me to jailfor more than six months or I'll
be deported on the basis ofserious criminality.
And the judge had to review insome detail all the law
surrounding that.
And indeed judges can take intoaccount, like the collateral
consequences of a case todetermine, you know, what impact
(17:43):
should that have on yoursentence, right, like, for
example, if somebody was, youknow, fired from their job and
lost everything and so on as aresult of the same circumstance.
That's a consideration, rightin terms of what sentence should
be imposed, and so you can givesome consideration of the fact
that you may get deported oversomething.
A judge can at least thinkabout that, and here, however,
(18:04):
the judge concluded that it'sjust not appropriate to reduce
the sentence to artificially getit under six months.
The last time the guy wasconvicted of impaired driving,
he was given five months and 29days.
I think somebody was obviouslythinking about well, don't turn
it into a deportation.
But the judge said no, into adeportation.
But the judge said no.
He said no, that's notappropriate, I'm not doing that.
(18:27):
And did, however, take intoaccount the fact that he'd
already spent 111 days in prisonand did take into account the
fact that he was video recordedon the toilet although he found
that that was a minor impact onhim and ultimately concluded
that on the impaired drivingcount, he should get what he
(18:49):
eventually calculated as 198days in prison, like a year,
minus subtracting the time he'dalready served and this and that
, which is 6.6 months.
So it would appear that on thatcount alone, he's in some
jeopardy of being removed fromCanada, despite how long he's
been here for.
(19:10):
The other interesting element ofall this was well, what's the
sentence?
There's a separate charge ofdriving while prohibited and the
judge found that that should bea consecutive sentence, like
one that is, after the impaireddriving sentence is served right
, not running at the same time,after the impaired driving
sentence is served right, notrunning at the same time.
And on that count, the judgepointed out that the man was
subject to five previous drivingprohibitions at the time he was
(19:33):
driving, like for fivedifferent reasons.
He'd been prohibited fromdriving, but he was still
driving, and the judge actuallyused the language flabbergasted
that the Crown wasn't seekingthe maximum possible sentence,
which would be two years less aday for the driving while
prohibited.
Given that, but having, I guess, calmed down a bit from being
(19:53):
flabbergasted, the judge didtake into account the fact that
he'd already served a period oftime in custody, that he was
going to have these collateralconsequences of likely
deportation, that there shouldbe some consideration given to
mitigate the sentence in termsof the toilet videotaping, and
after all of that, gave him 120days consecutive, so after he
(20:15):
served the next 6.6 months onthe driving while prohibited
case.
So the net result of all thatis that the man did get a
sentence that exceeded the sixmonths, so it's likely to be
serious criminality and thelikely result is going to be
deportation for citizenship.
To get on with that, becausethere are indeed a long list of
possible offenses where, even ifyou don't go over the six-month
(20:49):
mark, the charge itself likefor things like assault with a
weapon right.
Maybe you're charged withassault by throwing a TV remote
control at somebody or something, right.
Regardless of what sentence youget, you may find yourself
inadmissible to Canada and out,and so if you're eligible you've
been here for years get on withit.
(21:10):
The other cautionary tale ofcourse this should be a takeaway
for other police departmentsdon't videotape people naked who
are in cells, and the judgepointed out there could be
reasons to do it, like if youhad a reason to think somebody
was going to harm themselves oryou thought somebody was trying
to dispose of drugs secreted ontheir body, like there could be
reasons why you couldlegitimately do it.
(21:31):
But you can't just have a videocamera pointed at the toilet
and record a person in sort ofthe most embarrassing way.
That's just not going to bepermissible and even though here
it was viewed as a relativelyminor factor, it was viewed as a
breach and I'm sure if you had,the police continue to do that.
In light of this clear judicialmessage, hey, don't do that
(21:51):
right.
The next time there may be amore significant remedy.
So no toilet videotaping.
And if you're prohibited, stopdriving.
And if you're eligible forcitizenship, get on with it.
So that's the latest from theBC Provincial Court.
Adam Stirling (22:03):
Legally speaking, during the second half of our
second hour every Thursday onCFAX 1070.
Thank you so much, Michael.
Pleasure as always.
Michael Mulligan (22:10):
Thanks so much .
Always great to be here.
It's time for a regular segment, joined as
always by Barrister andSolicitor, with Mulligan defence
lawyers.
Michael Mulligan, with LegallySpeaking on CFAX Afternoon.
Michael, how are we doing?
Michael Mulligan (00:09):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Interesting things on the agenda Up.
First I'm reading the SupremeCourt of Canada concluding the
Court of Appeals should haveentered an acquittal after
setting aside a conviction of aBC woman in relation to the
death of a baby.
What happened here?
Michael Mulligan (00:26):
Nothing good happened here.
This was just a completetragedy start to finish, and so
it's.
A BC case started out in BC andit involved a woman who had
taken care of another woman whohad taken care of this
19-month-old toddler, I guess,and she'd done that on a number
(00:47):
of occasions.
This was up in Cranbrook backin 2011.
And tragically, the young girlthat she was taking care of died
in the bathtub and the cause ofdeath was determined to be
drowning in the bathtub.
Of death was determined to bedrowning in the bathtub, and
(01:10):
part of the trouble for thiswoman the babysitter, I guess
we'll call her who was chargedeventually with second-degree
murder arose out of variousinconsistent things that she'd
said reporting how this happened, like, for example, when she
called 911, she claimed that shehad just turned her head for a
moment in the bathroom and whenshe looked back, the child had
fallen down in the tub.
(01:30):
And then, in a subsequentstatement to the police, she
said she'd briefly stepped outof the room.
So she gave slightly differentversions of events about what
happened, which caused suspicion, and eventually there was an
autopsy performed by a medicalexaminer from Alberta, and the
medical examiner offered variousopinions about the cause of
death and also opining aboutsome injuries seen on the head
(01:55):
of the toddler who passed away,and it resulted in the woman
being tricked with secondarymurder.
Now, another confounding factorI should say here is that the
mother of the baby or toddleralso revealed that a short
period of time prior to all ofthis, the child had suffered a
viral brain infection and hadbeen hospitalized for it.
(02:18):
So there are some other thingsgoing on that may have
contributed to what happened inthe bathtub.
But this woman who was chargedwith second-degree murder had
what's called a preliminaryinquiry.
It's like a hearing aboutwhether there's enough evidence
to proceed to trial in a seriouscriminal case, and at that
preliminary inquiry this medicalexaminer testified and offered
(02:39):
opinions about things includingan injury on her child's lip,
the cause of drowning and so on,and largely on the strength of
what the medical examiner had tosay at the preliminary inquiry,
the woman was required to standtrial for second-degree murder.
The preliminary inquiry judgedetermined there was enough
evidence to proceed with a trial.
(03:00):
Now the problem started toarise because there had been a
review of some of this medicalexaminer's work done in Alberta
and the Alberta government wroteto the BC, the police and Crown
in BC and they provided 140pages of material detailing the
(03:20):
results of an independent reviewconducted by three other
medical examiners that raisedconcerns about the reliability
of the opinion of this examinerin this case and a series of
other cases, and outlining whatall those were.
And the problem was that theCrown didn't provide all of that
to the defence.
(03:41):
They didn't know that there'dbeen this independent review
calling into question theconclusion drawn by this medical
examiner and in that context,not knowing about those concerns
about the person's opinions,defense agreed to plead guilty
to a charge of criminalnegligence causing death.
(04:03):
And the woman did that and shewas sentenced to a year in
prison, which she served.
And then, several years later,after that all had transpired
and I should say the sentence,according to the Supreme Court
of Canada, had a completelydevastating impact on this
woman's life.
She lost custody of her ownfour children, she was
(04:24):
ostracized from her community,she wound up with a drug
addiction, she became homeless,wound up in poverty, served her
entire sentence, just completelyruined, destroyed her life in
any way, every way imaginable.
And then in British Columbia,some years later, there was a
special prosecutor appointed tolook into the case and the
special prosecutor concluded,realized that the Crown at the
(04:47):
time had withheld theinformation about the medical
examiner, hadn't given it to thedefense, and so that resulted
in the case going before theCourt of Appeal and the Crown in
BC, the special prosecutoragreeing taking the position of
the Court of Appeal.
There was just a terriblemiscarriage of justice in terms
(05:07):
of what happened here.
Of course in criminal casesthere is an obligation, and for
very good reason, that the Crownis required to provide to the
defense evidence and materialthey have which is exculpatory,
like evidence that might showyou might not have done it right
.
They can't just keep thatsecret and it was without that
(05:28):
information that the woman hadpled guilty to this other
offense.
And I should say it'sunderstandable why somebody
might choose to do that in thecircumstances, because a
conviction for murder results ina life sentence.
So if I tell you you're ontrial for murder, if you're
convicted you're in prison,potentially for the rest of your
life, or you complete guilty tothis other offense and go to
(05:49):
jail for a year, it is easy tosee how somebody might pick up
should do so.
On that basis it went to thecourt of appeal and the court of
appeal concluded that indeedthere was a miscarriage of
justice, which is veryinteresting.
I'll come to another postscripton this case in a moment.
They concluded that and thenthe Crown took the position
(06:11):
saying, well, the appropriateremedy would be for the Court of
Appeal to enter an acquittal.
And the way that works is thatthere's a section of the
criminal code dealing with, well, what happens in the court of
appeal, where they determinethat there was a miscarriage of
justice, what should happen, andit's under 686, sub 2 of the
criminal code.
And the court of appeal hasthree options under that section
(06:32):
.
One option is to order a newtrial.
Another option is to enterwhat's called a judicial stay of
proceedings, where the courtjust says that's it, this isn't
going further.
Or the third option is to enteran acquittal.
And at the Court of Appeal,interestingly, the Crown took
the position that theappropriate remedy here would be
an acquittal and said clearlythat, look, if there was a new
(06:55):
trial ordered, the Crown wouldcall no evidence and the result
result would be she would beacquitted.
The Court of Appeal rejectedthat.
And the Court of Appeal said no, no, we're not doing that.
We think that there is otherevidence in this case right,
which could theoretically haveresulted in a jury convicting,
even if you deal with thepotential problems with the
(07:17):
medical examiner's evidence.
They said well, we think it'sthe least possible, so we're not
going to do that, despite theCrown saying no, you should be
acquitting her.
And so that's what went to theSupreme Court of Canada.
And so the Supreme Court ofCanada had to decide what's
appropriate.
How should a court of appealdeal with it where you have the
Crown standing up saying there'sa miscarriage of justice here.
(07:38):
She should be acquitted?
Should the Court of Appealnonetheless just say, well,
we're entering a state ofproceedings?
I mean, on one level they havea similar effect, right, but at
the end of the day the woman hasserved her entire sentence, her
life has been decimated andreally sort of what's at stake
is well, how is that viewed?
Might that help somehow repairher reputation somehow if it's
(08:03):
an acquittal rather than a stay?
And so the Supreme Court ofCanada revisited that issue and
how that section is to beinterpreted, and they concluded
that the appropriate remedy herewas an acquittal Given the
Crown acknowledging there is amiscarriage of justice.
And that's what was found bythe Court of Appeal.
Clearly, and given theproposition that the Crown
saying saying, look, thereshould be an acquittal and if
you order a new trial we wouldcall no evidence and the
(08:26):
immediate result would be aacquittal, right, yeah, and the
supreme court of canada agreed.
The supreme court of canadasaid look, that's what should
have happened here.
There shouldn't be a necessityof going through sort of a pro
forma, ordering a new trial andand then having the Crown stand
up and say we call no evidenceand we invite you to acquit, and
then having another trial judgeacquit that.
(08:46):
Where there's a miscarriage ofjustice and where the Crown is
taking that position inparticular, that would be the
appropriate result If Canada'sdone, for all the good it's
going to do this woman, who'shad her life ruined by how this
case was handled and the failureto provide her or her lawyers
(09:07):
with the information about thisreview of the medical examiner's
opinions.
Now the other fascinatingpostscript about this very same
fact, pattern and case andmedical examiner is the medical
examiner took issue with how hewas treated and he wound up
getting involved in litigationwith the Alberta government and
(09:28):
with the CBC over a.
The CBC did a TV special aboutthis case and that background
and what happened and the it wasthe Fifth Estate, the episode
about it.
And so, fascinatingly, on justin March of this year, the
(09:51):
government of Alberta issued aletter of apology to the medical
examiner saying that he wastreated unfairly.
And he was treated unfairly.
And he was an apology saying,amongst other things in this
apology there have been nomiscarriages of justice in
connection with this doctor'swork, which is just fascinating,
(10:18):
given, of course, we've justhad the BC Court of Appeal and
now the Supreme Court of Canadarendering these decisions on the
very basis that there is amiscarriage of justice.
Now I suppose you could squarethat circle to some extent by
saying well, look, the clearmiscarriage of justice here was
not telling the defense aboutthe independent review by three
other pathologists of thisdoctor's work that clearly on
(10:42):
its own resulted in themiscarriage of justice.
The person just didn't knowwhat was going on and the
potential problems with hisopinion.
Had that happened, of course,you would have then had the
potential, for the defense mighthave then said well, we're not
entering guilty plea to anything.
Your case is premised on this.
We're going to proceed andwe're going to rigorously
challenge and cross-examine thisperson about his opinion, at
(11:02):
which point.
Of course, he would have thenhad an opportunity to be quote
treated fairly in the sense thathe could have then, I suppose,
defended his opinion in court.
And so you've got this justreally interesting scene of
affairs where a woman's life hasbeen ruined by the failure to
provide the information and thedoctor is filed engaged in this
(11:24):
litigation and complaint aboutbeing treated unfairly, which
has resulted in this remarkableapology, saying something which
to, at least on one level,appears to contradict what the
Supreme Court of Canada, bcCourt of Appeal and the special
prosecutor concluded, bearing inmind, I suppose, that a caveat,
which could be the unfairnessor the miscarriage of justice,
(11:45):
could have been not telling them, telling defense about the
conclusion rather thannecessarily the conclusion being
wrong.
Interestingly, the otherpostscript is that the Supreme
Court of Canada points out thatthe family of the deceased is
supportive of the woman beingfound not guilty.
Their view is that that's theappropriate thing here, and you
(12:05):
can just imagine the justcompounded tragedy, right, if
you're the parents of thisdeceased child, finding out not
only having lost your childchild but also now potentially
have had the child's caregiverhaving been, wrongfully, you
know, winding up spending a yearof her life in prison and her
life destroyed over it, right?
(12:26):
No doubt that's completelyunsatisfactory as well.
So their position was that aswell, that she should have been
acquitted.
So just a fascinating case outof BC.
And really the takeaway for allof us involved in the criminal
justice system is you've got tomake sure that you're just
carefully letting the other sideknow all of the evidence that
you've got, and if you don't, itcan just ruin lives start to
(12:50):
finish, and this is an exampleof that.
Now, that's the latest from theSupreme Court of Canada and to
the extent that the acquittalnow, rather than the state of
proceedings, provides somesolace and closure, at the very
least we've got that and themedical examiner has his apology
from the Alberta government.
So that's the latest from theSupreme Court of Canada.
Adam Stirling (13:09):
Legally Speaking will continue in just a moment
on CFAX 1070.
Legally Speaking continues onCFAX 1070.
Joined, as always by MichaelMulligan, barrister and
solicitor, with Mulligan DefenceLawyers.
On CFAX 1070, joined as alwaysby Michael Mulligan, barrister
and solicitor, with MulliganDefense Lawyers.
Michael up next on my agenda.
It says a sentence reductionfor police video recording a man
arrested for impaired drivingwhile using the toilet.
It says, but no furtherreduction to avoid deportation.
(13:33):
There's some layers here?
Michael Mulligan (13:36):
There sure are .
I mean, on one level, this is acase of a burden, and on one
level, you look at it and say,well, first of all, it doesn't
look too remarkable.
To begin with, it was animpaired driving case that
started with the man rear-endinganother vehicle in a fender
bender, and so, at first blush,you look at that and say, well,
this doesn't seem too aggravated.
Nobody was injured.
The problems for this man,though, really relate to both
(14:01):
his immigration status and hisrecord.
First of all, his immigrationstatus.
He's 57 years of age, he'slived in Canada for over 34
years, but he's only a permanentresident.
That's a problem, because, ifyou wind up being guilty of
what's called seriouscriminality, you are subject to
being deported without a hearing, no matter how long you've been
here and whatever yourcircumstances might be, and
(14:24):
that's a good reason why, if youare a permanent resident and
eligible to apply forcitizenship, do so, because you
might find yourself on the outsafter 34 years.
Now the other problem for thisman you still might think how is
this going to turn into quoteserious criminality?
Because one of the ways to getthere is that you need to get a
jail sentence of more than sixmonths or be convicted of
(14:44):
something that could land you inprison for more than 10 years.
So the problem for this man ishe's been a very, very bad
driver for all that period oftime.
He has on his record, accordingto the judge, 32 driving
prohibitions, 16 separate.
This is beyond the 32, 24-hourdriving prohibitions.
(15:05):
Those are usually for alcohol,along with a substantial number
of criminal code, other motorvehicle act infractions, and so
just an incorrigible it lookslike impaired driver, and the
man had a trial where he wasconvicted and sentenced.
There was a new trial orderedafter he'd served 111 days in
jail, and then that brings us tothis case, the trial decision.
(15:29):
The first part of it, or one ofthe issues of the case, was that
after the man was arrested andafter he'd brought to the police
station and after he providedhis breath samples, they kept
the man in cells for some reason.
It was unclear why and when theykept him in cells at the police
detachment.
There they were video recordinghim on a video system where you
could both, I guess, watch itand also it's recorded, and the
(15:51):
video system included a video ofhim.
The toilet, like it's a cellwith a toilet with no nothing
blocking it, and so the videorecording of the man included a
video of him defecating in thetoilet clearly on the video.
Interestingly, there are twoother elements.
One is that there is apparentlya sign, or more than one sign,
(16:14):
notifying people, like in thebooking area, subject to video
recording in the cell right, andapparently there is some policy
whereby they're supposed togive you like a screen or
something if you ask for it touse the toilet, but there's no
indication, no, that you couldget such a screen so you don't
ask for that became illegal yeahyou have to know to ask for it.
Good luck with that.
One right um.
(16:36):
And so the judge found that thevideotaping of the man using
the toilet, uh, constituted aconstitutional breach that had
impacted his dignity,embarrassing him, you know,
showing him in this way,although the judge, and so the
issue then was what's the remedyfor that?
And so the judge rejected aremedy of staying the
(16:58):
proceedings they know this isquite serious, given the man's
record, that's not happeningAlso rejected the idea that
there should be some evidenceexcluded as a result of that,
because really the investigationwas finished, so that wasn't
going to be a remedy.
And so the judge said well,there could be some remedy if
he's convicted, in terms of somereduction in the sentence as a
remedy for this toiletvideotaping.
Well, the man was convicted.
(17:19):
And then the issue for thejudge was the man's submission
was look, don't send me to jailfor more than six months or I'll
be deported on the basis ofserious criminality.
And the judge had to review insome detail all the law
surrounding that.
And indeed judges can take intoaccount, like the collateral
consequences of a case todetermine, you know, what impact
(17:43):
should that have on yoursentence, right, like, for
example, if somebody was, youknow, fired from their job and
lost everything and so on as aresult of the same circumstance.
That's a consideration, rightin terms of what sentence should
be imposed, and so you can givesome consideration of the fact
that you may get deported oversomething.
A judge can at least thinkabout that, and here, however,
(18:04):
the judge concluded that it'sjust not appropriate to reduce
the sentence to artificially getit under six months.
The last time the guy wasconvicted of impaired driving,
he was given five months and 29days.
I think somebody was obviouslythinking about well, don't turn
it into a deportation.
But the judge said no, into adeportation.
But the judge said no.
He said no, that's notappropriate, I'm not doing that.
(18:27):
And did, however, take intoaccount the fact that he'd
already spent 111 days in prisonand did take into account the
fact that he was video recordedon the toilet although he found
that that was a minor impact onhim and ultimately concluded
that on the impaired drivingcount, he should get what he
(18:49):
eventually calculated as 198days in prison, like a year,
minus subtracting the time he'dalready served and this and that
, which is 6.6 months.
So it would appear that on thatcount alone, he's in some
jeopardy of being removed fromCanada, despite how long he's
been here for.
(19:10):
The other interesting element ofall this was well, what's the
sentence?
There's a separate charge ofdriving while prohibited and the
judge found that that should bea consecutive sentence, like
one that is, after the impaireddriving sentence is served right
, not running at the same time,after the impaired driving
sentence is served right, notrunning at the same time.
And on that count, the judgepointed out that the man was
subject to five previous drivingprohibitions at the time he was
(19:33):
driving, like for fivedifferent reasons.
He'd been prohibited fromdriving, but he was still
driving, and the judge actuallyused the language flabbergasted
that the Crown wasn't seekingthe maximum possible sentence,
which would be two years less aday for the driving while
prohibited.
Given that, but having, I guess, calmed down a bit from being
(19:53):
flabbergasted, the judge didtake into account the fact that
he'd already served a period oftime in custody, that he was
going to have these collateralconsequences of likely
deportation, that there shouldbe some consideration given to
mitigate the sentence in termsof the toilet videotaping, and
after all of that, gave him 120days consecutive, so after he
(20:15):
served the next 6.6 months onthe driving while prohibited
case.
So the net result of all thatis that the man did get a
sentence that exceeded the sixmonths, so it's likely to be
serious criminality and thelikely result is going to be
deportation for citizenship.
To get on with that, becausethere are indeed a long list of
possible offenses where, even ifyou don't go over the six-month
(20:49):
mark, the charge itself likefor things like assault with a
weapon right.
Maybe you're charged withassault by throwing a TV remote
control at somebody or something, right.
Regardless of what sentence youget, you may find yourself
inadmissible to Canada and out,and so if you're eligible you've
been here for years get on withit.
(21:10):
The other cautionary tale ofcourse this should be a takeaway
for other police departmentsdon't videotape people naked who
are in cells, and the judgepointed out there could be
reasons to do it, like if youhad a reason to think somebody
was going to harm themselves oryou thought somebody was trying
to dispose of drugs secreted ontheir body, like there could be
reasons why you couldlegitimately do it.
(21:31):
But you can't just have a videocamera pointed at the toilet
and record a person in sort ofthe most embarrassing way.
That's just not going to bepermissible and even though here
it was viewed as a relativelyminor factor, it was viewed as a
breach and I'm sure if you had,the police continue to do that.
In light of this clear judicialmessage, hey, don't do that
(21:51):
right.
The next time there may be amore significant remedy.
So no toilet videotaping.
And if you're prohibited, stopdriving.
And if you're eligible forcitizenship, get on with it.
So that's the latest from theBC Provincial Court.
Adam Stirling (22:03):
Legally speaking, during the second half of our
second hour every Thursday onCFAX 1070.
Thank you so much, Michael.
Pleasure as always.
Michael Mulligan (22:10):
Thanks so much .
Always great to be here.
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