Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Supreme Court of Canada Orders Acquittal: A Miscarriage of Justice
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.
It's time for a regular segment, joined as always by Barrister and Solicitor, with Mulligan defence lawyers. Michael Mulligan, with Legally Speaking on CFAX Afternoon. Michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Interesting things on the agenda Up. First I'm reading the Supreme Court of Canada concluding the Court of Appeals should have entered an acquittal after setting aside a conviction of a BC woman in relation to the death of a baby. What happened here?
Michael Mulligan:Nothing good happened here. This was just a complete tragedy start to finish, and so it's. A BC case started out in BC and it involved a woman who had taken care of another woman who had taken care of this 19-month-old toddler, I guess, and she'd done that on a number of occasions. This was up in Cranbrook back in 2011. And tragically, the young girl that she was taking care of died in the bathtub and the cause of death was determined to be drowning in the bathtub. Of death was determined to be drowning in the bathtub, and part of the trouble for this woman the babysitter, I guess we'll call her who was charged eventually with second-degree murder arose out of various inconsistent things that she'd said reporting how this happened, like, for example, when she called 911, she claimed that she had just turned her head for a moment in the bathroom and when she looked back, the child had fallen down in the tub. And then, in a subsequent statement to the police, she said she'd briefly stepped out of the room. So she gave slightly different versions of events about what happened, which caused suspicion, and eventually there was an autopsy performed by a medical examiner from Alberta, and the medical examiner offered various opinions about the cause of death and also opining about some injuries seen on the head of the toddler who passed away, and it resulted in the woman being tricked with secondary murder. Now, another confounding factor I should say here is that the mother of the baby or toddler also revealed that a short period of time prior to all of this, the child had suffered a viral brain infection and had been hospitalized for it. So there are some other things going on that may have contributed to what happened in the bathtub.
Michael Mulligan:But this woman who was charged with second-degree murder had what's called a preliminary inquiry. It's like a hearing about whether there's enough evidence to proceed to trial in a serious criminal case, and at that preliminary inquiry this medical examiner testified and offered opinions about things including an injury on her child's lip, the cause of drowning and so on, and largely on the strength of what the medical examiner had to say at the preliminary inquiry, the woman was required to stand trial for second-degree murder. The preliminary inquiry judge determined there was enough evidence to proceed with a trial. Now the problem started to arise because there had been a review of some of this medical examiner's work done in Alberta and the Alberta government wrote to the BC, the police and Crown in BC and they provided 140 pages of material detailing the results of an independent review conducted by three other medical examiners that raised concerns about the reliability of the opinion of this examiner in this case and a series of other cases, and outlining what all those were. And the problem was that the Crown didn't provide all of that to the defence. They didn't know that there'd been this independent review calling into question the conclusion 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 criminal negligence causing death. And the woman did that and she was sentenced to a year in prison, which she served.
Michael Mulligan: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 completely devastating impact on this woman's life. She lost custody of her own four children, she was ostracized from her community, she wound up with a drug addiction, she became homeless, wound up in poverty, served her entire sentence, just completely ruined, destroyed her life in any way, every way imaginable. And then in British Columbia, some years later, there was a special prosecutor appointed to look into the case and the special prosecutor concluded, realized that the Crown at the time had withheld the information about the medical examiner, hadn't given it to the defense, and so that resulted in the case going before the Court of Appeal and the Crown in BC, the special prosecutor agreeing taking the position of the Court of Appeal. There was just a terrible miscarriage of justice in terms of what happened here.
Michael Mulligan:Of course in criminal cases there is an obligation, and for very good reason, that the Crown is required to provide to the defense evidence and material they have which is exculpatory, like evidence that might show you might not have done it right. They can't just keep that secret and it was without that information that the woman had pled guilty to this other offense. And I should say it's understandable why somebody might choose to do that in the circumstances, because a conviction for murder results in a life sentence. So if I tell you you're on trial for murder, if you're convicted you're in prison, potentially for the rest of your life, or you complete guilty to this other offense and go to jail for a year, it is easy to see how somebody might pick up should do so. On that basis it went to the court of appeal and the court of appeal concluded that indeed there was a miscarriage of justice, which is very interesting.
Michael Mulligan:I'll come to another postscript on this case in a moment. They concluded that and then the Crown took the position saying, well, the appropriate remedy would be for the Court of Appeal to enter an acquittal. And the way that works is that there's a section of the criminal code dealing with, well, what happens in the court of appeal, where they determine that there was a miscarriage of justice, what should happen, and it's under 686, sub 2 of the criminal code. And the court of appeal has three options under that section. One option is to order a new trial. Another option is to enter what's called a judicial stay of proceedings, where the court just says that's it, this isn't going further. Or the third option is to enter an acquittal.
Michael Mulligan:And at the Court of Appeal, interestingly, the Crown took the position that the appropriate remedy here would be an acquittal and said clearly that, look, if there was a new trial ordered, the Crown would call no evidence and the result result would be she would be acquitted. The Court of Appeal rejected that. And the Court of Appeal said no, no, we're not doing that. We think that there is other evidence in this case right, which could theoretically have resulted in a jury convicting, even if you deal with the potential problems with the medical examiner's evidence. They said well, we think it's the least possible, so we're not going to do that, despite the Crown saying no, you should be acquitting her. And so that's what went to the Supreme Court of Canada.
Michael Mulligan:And so the Supreme Court of Canada had to decide what's appropriate. How should a court of appeal deal with it where you have the Crown standing up saying there's a miscarriage of justice here. She should be acquitted? Should the Court of Appeal nonetheless just say, well, we're entering a state of proceedings? I mean, on one level they have a similar effect, right, but at the end of the day the woman has served her entire sentence, her life has been decimated and really sort of what's at stake is well, how is that viewed? Might that help somehow repair her reputation somehow if it's an acquittal rather than a stay? And so the Supreme Court of Canada revisited that issue and how that section is to be interpreted, and they concluded that the appropriate remedy here was an acquittal Given the Crown acknowledging there is a miscarriage of justice. And that's what was found by the Court of Appeal.
Michael Mulligan:Clearly, and given the proposition that the Crown saying saying, look, there should be an acquittal and if you order a new trial we would call no evidence and the immediate result would be a acquittal, right, yeah, and the supreme court of canada agreed. The supreme court of canada said look, that's what should have happened here. There shouldn't be a necessity of going through sort of a pro forma, ordering a new trial and and then having the Crown stand up and say we call no evidence and we invite you to acquit, and then having another trial judge acquit that. Where there's a miscarriage of justice and where the Crown is taking that position in particular, that would be the appropriate result If Canada's done, for all the good it's going to do this woman, who's had her life ruined by how this case was handled and the failure to provide her or her lawyers with the information about this review of the medical examiner's opinions.
Michael Mulligan:Now the other fascinating postscript about this very same fact, pattern and case and medical examiner is the medical examiner took issue with how he was treated and he wound up getting involved in litigation with the Alberta government and with the CBC over a. The CBC did a TV special about this case and that background and what happened and the it was the Fifth Estate, the episode about it. And so, fascinatingly, on just in March of this year, the government of Alberta issued a letter of apology to the medical examiner saying that he was treated unfairly. And he was treated unfairly. And he was an apology saying, amongst other things in this apology there have been no miscarriages of justice in connection with this doctor's work, which is just fascinating, given, of course, we've just had the BC Court of Appeal and now the Supreme Court of Canada rendering these decisions on the very basis that there is a miscarriage of justice.
Michael Mulligan:Now I suppose you could square that circle to some extent by saying well, look, the clear miscarriage of justice here was not telling the defense about the independent review by three other pathologists of this doctor's work that clearly on its own resulted in the miscarriage of justice. The person just didn't know what was going on and the potential problems with his opinion. Had that happened, of course, you would have then had the potential, for the defense might have then said well, we're not entering guilty plea to anything. Your case is premised on this. We're going to proceed and we're going to rigorously challenge and cross-examine this person about his opinion, at which point. Of course, he would have then had an opportunity to be quote treated fairly in the sense that he could have then, I suppose, defended his opinion in court.
Michael Mulligan:And so you've got this just really interesting scene of affairs where a woman's life has been ruined by the failure to provide the information and the doctor is filed engaged in this litigation and complaint about being treated unfairly, which has resulted in this remarkable apology, saying something which to, at least on one level, appears to contradict what the Supreme Court of Canada, bc Court of Appeal and the special prosecutor concluded, bearing in mind, I suppose, that a caveat, which could be the unfairness or the miscarriage of justice, could have been not telling them, telling defense about the conclusion rather than necessarily the conclusion being wrong. Interestingly, the other postscript is that the Supreme Court of Canada points out that the family of the deceased is supportive of the woman being found not guilty. Their view is that that's the appropriate thing here, and you can just imagine the just compounded tragedy, right, if you're the parents of this deceased child, finding out not only having lost your child child but also now potentially have had the child's caregiver having been, wrongfully, you know, winding up spending a year of her life in prison and her life destroyed over it, right? No doubt that's completely unsatisfactory as well. So their position was that as well, that she should have been acquitted.
Michael Mulligan:So just a fascinating case out of BC. And really the takeaway for all of us involved in the criminal justice system is you've got to make sure that you're just carefully letting the other side know all of the evidence that you've got, and if you don't, it can just ruin lives start to finish, and this is an example of that. Now, that's the latest from the Supreme Court of Canada and to the extent that the acquittal now, rather than the state of proceedings, provides some solace and closure, at the very least we've got that and the medical examiner has his apology from the Alberta government. So that's the latest from the Supreme Court of Canada.
Adam Stirling:Legally Speaking will continue in just a moment on CFAX 1070. Legally Speaking continues on CFAX 1070. Joined, as always by Michael Mulligan, barrister and solicitor, with Mulligan Defence Lawyers. On CFAX 1070, joined as always by Michael Mulligan, barrister and solicitor, with Mulligan Defense Lawyers. Michael up next on my agenda. It says a sentence reduction for police video recording a man arrested for impaired driving while using the toilet. It says, but no further reduction to avoid deportation. There's some layers here?
Michael Mulligan:There sure are. I mean, on one level, this is a case 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 an impaired driving case that started with the man rear-ending another 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 his immigration status and his record. First of all, his immigration status. He's 57 years of age, he's lived in Canada for over 34 years, but he's only a permanent resident. That's a problem, because, if you wind up being guilty of what's called serious criminality, you are subject to being deported without a hearing, no matter how long you've been here and whatever your circumstances might be, and that's a good reason why, if you are a permanent resident and eligible to apply for citizenship, do so, because you might find yourself on the outs after 34 years. Now the other problem for this man you still might think how is this going to turn into quote serious criminality? Because one of the ways to get there is that you need to get a jail sentence of more than six months or be convicted of something that could land you in prison for more than 10 years. So the problem for this man is he's been a very, very bad driver for all that period of time. He has on his record, according to the judge, 32 driving prohibitions, 16 separate. This is beyond the 32, 24-hour driving prohibitions. Those are usually for alcohol, along with a substantial number of criminal code, other motor vehicle act infractions, and so just an incorrigible it looks like impaired driver, and the man had a trial where he was convicted and sentenced. There was a new trial ordered after he'd served 111 days in jail, and then that brings us to this case, the trial decision.
Michael Mulligan:The first part of it, or one of the issues of the case, was that after the man was arrested and after he'd brought to the police station and after he provided his breath samples, they kept the man in cells for some reason.
Michael Mulligan:It was unclear why and when they kept him in cells at the police detachment. There they were video recording him on a video system where you could both, I guess, watch it and also it's recorded, and the video system included a video of him. The toilet, like it's a cell with a toilet with no nothing blocking it, and so the video recording of the man included a video of him defecating in the toilet clearly on the video. Interestingly, there are two other elements. One is that there is apparently a sign, or more than one sign, notifying people, like in the booking area, subject to video recording in the cell right, and apparently there is some policy whereby they're supposed to give you like a screen or something if you ask for it to use the toilet, but there's no indication, no, that you could get such a screen so you don't ask for that became illegal yeah you have to know to ask for it.
Michael Mulligan:Good luck with that. One right um. And so the judge found that the videotaping of the man using the toilet, uh, constituted a constitutional 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 remedy for that? And so the judge rejected a remedy of staying the proceedings they know this is quite serious, given the man's record, that's not happening Also rejected the idea that there should be some evidence excluded as a result of that, because really the investigation was 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 some reduction in the sentence as a remedy for this toilet videotaping. Well, the man was convicted. And then the issue for the judge was the man's submission was look, don't send me to jail for more than six months or I'll be deported on the basis of serious criminality. And the judge had to review in some detail all the law surrounding that. And indeed judges can take into account, like the collateral consequences of a case to determine, you know, what impact should that have on your sentence, right, like, for example, if somebody was, you know, fired from their job and lost everything and so on as a result of the same circumstance. That's a consideration, right in terms of what sentence should be imposed, and so you can give some consideration of the fact that you may get deported over something. A judge can at least think about that, and here, however, the judge concluded that it's just not appropriate to reduce the sentence to artificially get it under six months. The last time the guy was convicted of impaired driving, he was given five months and 29 days. I think somebody was obviously thinking about well, don't turn it into a deportation. But the judge said no, into a deportation. But the judge said no. He said no, that's not appropriate, I'm not doing that. And did, however, take into account the fact that he'd already spent 111 days in prison and did take into account the fact that he was video recorded on the toilet although he found that that was a minor impact on him and ultimately concluded that on the impaired driving count, he should get what he eventually calculated as 198 days in prison, like a year, minus subtracting the time he'd already served and this and that, which is 6.6 months. So it would appear that on that count alone, he's in some jeopardy of being removed from Canada, despite how long he's been here for.
Michael Mulligan:The other interesting element of all this was well, what's the sentence? There's a separate charge of driving while prohibited and the judge found that that should be a consecutive sentence, like one that is, after the impaired driving sentence is served right, not running at the same time, after the impaired driving sentence is served right, not running at the same time. And on that count, the judge pointed out that the man was subject to five previous driving prohibitions at the time he was driving, like for five different reasons. He'd been prohibited from driving, but he was still driving, and the judge actually used the language flabbergasted that the Crown wasn't seeking the maximum possible sentence, which would be two years less a day for the driving while prohibited. Given that, but having, I guess, calmed down a bit from being flabbergasted, the judge did take into account the fact that he'd already served a period of time in custody, that he was going to have these collateral consequences of likely deportation, that there should be some consideration given to mitigate the sentence in terms of the toilet videotaping, and after all of that, gave him 120 days consecutive, so after he served the next 6.6 months on the driving while prohibited case. So the net result of all that is that the man did get a sentence that exceeded the six months, so it's likely to be serious criminality and the likely result is going to be deportation for citizenship. To get on with that, because there are indeed a long list of possible offenses where, even if you don't go over the six-month mark, the charge itself like for things like assault with a weapon right. Maybe you're charged with assault by throwing a TV remote control at somebody or something, right. Regardless of what sentence you get, you may find yourself inadmissible to Canada and out, and so if you're eligible you've been here for years get on with it.
Michael Mulligan:The other cautionary tale of course this should be a takeaway for other police departments don't videotape people naked who are in cells, and the judge pointed out there could be reasons to do it, like if you had a reason to think somebody was going to harm themselves or you thought somebody was trying to dispose of drugs secreted on their body, like there could be reasons why you could legitimately do it. But you can't just have a video camera pointed at the toilet and record a person in sort of the most embarrassing way. That's just not going to be permissible and even though here it was viewed as a relatively minor 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 judicial message, hey, don't do that right. The next time there may be a more significant remedy. So no toilet videotaping. And if you're prohibited, stop driving. And if you're eligible for citizenship, get on with it. So that's the latest from the BC Provincial Court.
Adam Stirling:Legally speaking, during the second half of our second hour every Thursday on CFAX 1070. Thank you so much, Michael. Pleasure as always.
Michael Mulligan:Thanks so much. Always great to be here.