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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Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking June 12, 2025
Adam Striling [00:00:00] 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 T. Mulligan [00:00:09] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Striling [00:00:12] 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 T. Mulligan [00:00:26] Nothing good happened here and this was just a complete tragedy start to finish.
Adam Striling [00:00:31] Yeah.
Michael T. Mulligan [00:00:31] And so it’s a BC case started out in BC, and it involved a woman who would have taken care of another woman, who’d taken care this 19-month-old toddler, I guess, and she’d done that on a number of occasions. This was up on Cranbrook, 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. 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 charged 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 hospitalised for it. So there are some other things going on that may have contributed to what happened in the bathtub. This woman who was charged with second degree murder had what’s called a preliminary inquiry. It was like a kind of 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-page 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 for 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, defence 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. 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 ostracised 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, realised, that the Crown at the time had withheld the information about the medical examiner, and hadn’t given it to the defence. And so that resulted in the case going before the Court of Appeal and the Crown in BC the special prosecutor, agreeing to take the position of Court of appeal there was just a terrible miscarriage of justice, in terms of what happened here. Of course in criminal cases there is an obligation, and for very good reason, that the Crown is required to provide to the defence evidence and material they have which is extulpatory, 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 offence 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, you’re convicted, you’re in prison potentially for the rest of your life or you can plead guilty to this other offence or go to jail for a year. It is easy to see how somebody might pick up should Two.
Adam Striling [00:05:54] Yeah.
Michael T. Mulligan [00:05:54] So that 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 ,I’ll come to another postscript of 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 (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 this isn’t going further. Or the third option is enter an acquittal. And at the Court of Appeal, interestingly, the Crown took the position that the appropriate remedy here would be an acquittle and said clearly that if there was a new trial ordered, the Crown would call no evidence, and the result would be she would be acquitted. The Court of Appeal rejected that. And the Court of Appeals said, no, no we’re not doing that, we think that there is other evidence in this case, which could theoretically have resulted in a jury convicting, even if you take out the, even if deal with the potential problems with the medical examiner’s evidence. They said, well we think it’s the least possible, so we’re 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. And so the Supreme Court of Canada had to decide what’s appropriate. How should a court of appeal deal with it? We have the Crown standing up saying there was a miscarriage of justice here. she should be acquitted. Should the court of appeals nonetheless just say, well, we’re entering a stay 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 acquittle. Given the Crown acknowledging there is a miscarriage of justice, and that’s what was found by the Court of Appeal, clearly. And given the position of the Crown 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 an acquittal.
Adam Striling [00:08:28] yeah.
Michael T. Mulligan [00:08:28] And the Supreme Court of Canada agreed. The Supreme Court 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 then having the Crown stand up and say, we call no evidence, 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. And so that’s what the Supreme Court of Canada has done for all the good it’s going to do this woman who’s had her life ruined by this, how this case was handled and the failure to provide her with the, her lawyers with the information about this review of the medical examiner’s opinions. Now the other fascinating postscript about this very same fact pattern in 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. It was the Fifth Estate, the episode about it. And so, fascinatingly, 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 given an apology, saying amongst other things, of 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 was a miscarriage of justice. Now, I suppose you could square that circle to some extent by saying well look the clear miscarriages of justice here was not telling the defence 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 defence 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 rigorously challenge and cross-examine this person about his opinion, at which point, of course he would have had an opportunity to be “treated fairly” in the sense that he could have, then I suppose defended his opinion in court. 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 doctors filed this litigation and complained about being treated unfairly. Which has resulted in this remarkable apology; Saying something which to at least on one level appears to contradict 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 defence, about the conclusion rather than necessarily the conclusion being wrong. Interestingly, the other postscript is that the Supreme Court 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 could just imagine the just compounded tragedy. If you’re the, uh, you know, parents of this deceased child, finding out, you know, not only having lost your 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 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, To the extent that the acquittal now rather than the stay of proceedings provide 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 latest from the Supreme Court of Canada.
Adam Striling [00:13:09] Legally speaking, we’ll continue in just a moment on CFAX 1070.
[00:13:13] COMMERCIAL.
[00:13:13] Legally Speaking continues on CFX 1070, joined as always by Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyer, Mike, or lawyers, excuse me, 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 are some layers here.
Michael T. Mulligan [00:13:36] There sure are. I mean, on one level, this is a case out of Vernon. And on one level, you look at it and say, well, first of all, this looked 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’d look at that and say well, what’s the other 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. 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. ow is this going to turn into “serious criminality?”.
Adam Striling [00:14:39] Yeah.
Michael T. Mulligan [00:14:39] 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 prohibition, those are usually for alcohol, along with a substantial number of criminal code and other motor vehicle act infractions. And so just an incorrigible, it looks like impaired driver. 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. The first part of it, or one of the issues of the case was that after the man was arrested and after he brought to the police station and after he provided his breath samples, they kept the man in cells for some reason. 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 is 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 with him defecating in the toilet, clearly on the video Uh, yeah, interestingly, there are two other elements. One is that there was apparently a sign or more than one sign notifying people like in the booking area, subject to video recording in the cell.
Adam Striling [00:16:20] Yeah.
Michael T. Mulligan [00:16:20] And apparently there was some policy whereby they’re supposed to give you like a screen or something if you asked for it to use the toilet, but there’s no, no indication, no, that you could get such a screen.
Adam Striling [00:16:29] So you know to ask for it.
Michael T. Mulligan [00:16:30] That became a legal…
Michael T. Mulligan [00:16:31] Yeah. You have to know to ask. Good luck with that one, right? And so the judge found that the video taping of the man using the toilet constituted a constitutional breach that it impacted his dignity, embarrassing him, showing him in this way. Although the judge, so the issue, 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 deported on the basis of serious criminality. 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? 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.
Adam Striling [00:17:56] Yeah.
Michael T. Mulligan [00:17:56] And so you give some consideration of the fact that you may get deported over something you judge can at least think about that. But, 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, 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 we 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 the 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. The other interesting element of all this was, well, what’s the sentence because 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 sentences served. Not running at the same time.
Adam Striling [00:19:25] mm hmm.
Michael T. Mulligan [00:19:25] 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.
Adam Striling [00:19:38] wow.
Michael T. Mulligan [00:19:39] 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 well prohibited case. So the net result of all that is that the man did get a sentence that exceeded the six months was likely to be serious criminality. and the likely result is going to be deportation. so it’s a, I guess a cautionary tale on a couple of counts. On one level, it’s a cautionary tale for anyone who is a permanent resident and who might be eligible for citizenship to get on with that, because there are indeed a long list of possible offences where even if you don’t go over the six month mark, the charge itself, like for things like, you know, assault with a weapon, maybe you’re charged with assault by throwing a TV remote control at somebody or something. 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. The other cautionary tale, of course, 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 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 gonna 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 he 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 are eligible for citizenship, get on with it. So that’s the latest from the BC Provincial Court.
Adam Striling [00:22:03] Legally Speaking, during the second half of our second hour every Thursday on CFAX 1070, thank you so much, Michael. Pleasure as always.
Michael T. Mulligan [00:22:10] Thanks so much. Always great to be here.
Automatically Transcribed on June 13, 2024 – MULLIGAN DEFENCE LAWYERS