Summary

Keywords

Criminal law — Appeals — Powers of the Court of Appeal — Setting aside guilty plea when there has been a miscarriage of justice — Scope of appellate courts’ remedial discretion under s. 686(2) of the Criminal Code, R.S.C. 1985, c. C-46, to enter an acquittal — Did the Court of Appeal err in finding that the entirety of the record as amplified on appeal admits the reasonable possibility of a conviction on a theoretical retrial? — If there remains a reasonable possibility of a conviction on a retrial, does s. 686(2)(a) nevertheless permit a court of appeal to enter an acquittal and, if so, in what circumstances?

Summary

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(SEALING ORDER) (CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)

The appellant, Tammy Marion Bouvette, was babysitting a 19-month old baby who died while having a bath. An autopsy was conducted by Dr. Evan Matshes. The appellant was charged with second degree murder. The appellant pleaded guilty to criminal negligence causing death. The British Columbia Court of Appeal concluded that a body of relevant information was within the possession of the Crown and/or police and was not disclosed to the appellant’s counsel. Most significantly, the undisclosed evidence pertained to the reliability of the evidence and opinions of Dr. Matshes. The Court of Appeal held that the conviction must be set aside as the product of a miscarriage of justice, as the evidence and circumstances establish a reasonable possibility that the appellant would not have pleaded guilty to criminal negligence causing death had full disclosure been made. The Court of Appeal admitted the fresh evidence, allowed the appeal, vacated the guilty plea, set aside the conviction and entered a stay of proceedings.

Lower Court Rulings