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| John L. Hill |
Tammy Bouvette found herself in a difficult situation. In 2011, she was babysitting a 19-month-old girl named Iyanna Teeple in Cranbrook, B.C. While under Bouvette’s care, the baby was left unattended, slipped in the bathtub and drowned. Bouvette was charged with second-degree murder but pleaded guilty to criminal negligence causing death.
The evidence disclosed by the Crown suggested this was an open-and-shut case. A plea to a lesser charge appeared to be the most advantageous outcome. In 2020, a special prosecutor conducted an independent review, questioning the process used in her case. The doctor who performed the autopsy on the drowned child, Dr. Evan Matshes, was found to have made unreasonable conclusions in the autopsy report. What Bouvette learned from that inquiry was that this critical disclosure material had not been provided to her defence counsel. She had been denied the opportunity to make an informed decision about how to plead. She brought the matter to the British Columbia Court of Appeal.
In April 2023, the B.C. Court of Appeal acknowledged that the provision of essential disclosure material led to her plea and conviction, which the Appeal Court held to be “the product of a miscarriage of justice.” The court subsequently
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Justice Nicholas Kasirer outlined what appears to be a “case-specific” approach supported by Justices Suzanne Côté, Malcolm Rowe, Mahmud Jamal and Chief Justice Richard Wagner. It was determined that Bouvette should be acquitted immediately. When the Crown indicated it would present no evidence if a new trial were ordered, it would merely be a pro forma exercise to compel the parties to reach a predetermined result. The court stated, “For those narrow set of cases which bear the hallmarks of wrongful convictions, courts of appeal should apply a framework to determine whether an acquittal is in the interests of justice. In applying this framework, appellate courts should consider the nature and effects of the miscarriage, the potential for a new trial and the likelihood of acquittal, and the equities of a particular case. Such a framework focuses the appeal court’s attention on factors relevant to the question of whether an acquittal is appropriate, while also providing for flexibility to adapt to future cases.” The high standard for an unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code would inevitably be met regarding a new trial, and an acquittal should be the presumptive order.
Justices Andromache Karakatsanis, Sheilah Martin, Michelle O’Bonsawin and Mary Moreau agreed but chose a slightly different path in doing so. These judges concurred that it is desirable for the court to provide guidance on what should be done in similar cases, adopting a more generalized approach. They stated, “It is the remedial power in s. 686(2) that is at the crux of this appeal. A review of the text, context and purpose of that provision demonstrates how Parliament did more than open the door to an acquittal after a miscarriage of justice: the working and wording of s. 686 and the express and clear terms of s. 686(2) create a plenary authority allowing appellate courts to order either an acquittal (s. 686(2)(a)) or a new trial (s. 686(2)(b)) whenever any one of the three grounds to allow an appeal in s. 686(1)(a) has been established. The provision does not make an order for a new trial the presumptive remedy, nor does it require the court to consider either remedy in any particular order.”
It was observed that the legislative evolution of appellate jurisdiction and remedial powers in criminal matters supports the conclusion that Parliament intended appellate courts to possess broad remedial discretion to issue acquittals.
The appeal centred on whether, in the face of a proven miscarriage of justice, courts of appeal may enter an acquittal even when a reasonable jury could convict at a hypothetical new trial and, if so, the principles that govern their remedial discretion to do so. The B.C. Court of Appeal decided that an “exceptional remedial approach” to s. 686(2) had been recognized in Truscott (Reference re: Truscott, 2007 ONCA 575) and other appellate decisions. It was not convinced that Bouvette’s case was “sufficiently exceptional” to warrant its application. The court distinguished the circumstances from Truscott on two grounds — first, a new trial was not possible in Truscott, while there was still a theoretical possibility of a new trial here; and second, the record before the Court of Appeal was incomplete, whereas the Truscott court had the benefit of a complete record to assess culpability. The Court of Appeal particularly observed that it was not in a position to make findings regarding the disputed forensic pathology evidence. Nonetheless, it concluded that a stay of proceedings was clearly warranted.
The path taken by Justice Kasirer in his written opinion was more conservative than the approach embraced by the minority judgment authored by Justice Martin. The Martin judgment proposes a simplified test for determining whether an acquittal serves the interests of justice in cases that exhibit the hallmarks of wrongful conviction.
The jurisprudential rules for imposing a stay or granting an acquittal have not been fully established here. The question remains open to be determined in future cases that may lack the consensus of the parties expressed in this appeal.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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