Disclosure failure results in wrongful conviction and Crown independent of police

 

This week on Legally Speaking with Michael Mulligan:

In 2013, a 28-year-old babysitter, and mother of four, was charged with murder when a 19-month-old drowned in a bathtub.

The case against her was based on the opinion of a pathologist who alleged that “there is no benign explanation” for injuries sustained by the child and that the child had “extensive bruising” that is “typical of abused children.”

The babysitter, who had “Borderline Intellectual Functioning,” agreed to plead guilty to criminal negligence causing death to avoid the possibility of life in prison if she was convicted of murder. She served a year in jail, lost custody of her four children, and became homeless.

The BC Court of Appeal overturned her conviction. It directed a judicial stay of proceedings because it was recently determined that Crown Counsel who prosecuted the case failed to disclose to the babysitter of her lawyer that an investigation into the pathologist conducted by Alberta Justice concluded that there were serious concerns concerning the pathologist’s opinions.

Crown Counsel in BC received the 140-page report from Alberta Justice concerning the pathologist but failed to disclose it to the babysitter of her lawyer as they were required to do.

In addition, it was revealed that the RCMP had received documentation concerning the 19-month-old having been hospitalized a few weeks before the death with a suspected brain infection that resulted in the sudden loss of balance and hypertonia (abnormally increased muscle tone resulting in rigidity). The RCMP did not disclose this material to either Crown Counsel or the defence.

In criminal cases, the police, and Crown Counsel, have a legal obligation to provide disclosure of all evidence in their possession to the defence. Their failure to comply with this obligation resulted in a misarrange of justice and irreparable harm to the babysitter and her children.

Also, on the show, a plan to create twelve “hubs” across BC to address repeat violent offending is discussed.

As described, there are some positive elements to the proposal, including increased funding and plans to improve information sharing.

The news release with respect to the plan does raise concerns because it suggests that the hubs will be comprised of not only police and probation officers but also “dedicated Crown Counsel.”

Depending on how this is implemented, it is a concern. In Canada, Crown Counsel is independent of the police. Police conduct an investigation and then provide a report to Crown Counsel, along with whatever evidence they have collected. Crown Counsel then determines if criminal charges should be pursued.

This system helps guard against tunnel vision and allows for independent decision-making.

It would be undesirable to have Crown Counsel embedded in hubs with the police and probation officers as they would then be called on to make prosecutorial decisions concerning cases where they were part of the investigation.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.