Majority did not address broader discretionary question about when courts of appeal should issue acquittals
The Supreme Court of Canada has decided that Tammy Marion Bouvette deserves to be acquitted.
All nine members of the court agreed to this conclusion despite a five-to-four split regarding the legal reasoning behind the decision.
There was no dispute that Bouvette was a victim of a miscarriage of justice. Both the Crown and Bouvette’s legal team jointly held the position that she deserved to be acquitted – however, the British Columbia Court of Appeal didn’t do that when overturning her conviction for criminal negligence causing death in the case of a 19-month-old infant who drowned in the bath while Bouvette was babysitting. Instead, the BC court issued a stay of proceedings after it was determined that the Crown withheld vital information in the case, including how medical peers found that the conclusions put forward by the coroner who performed the autopsy on the baby were unreasonable. By that point, Bouvette had already served her whole sentence.
The issue in the case focused on which of three remedies a court of appeal may grant after setting aside a conviction due to a miscarriage of justice: an acquittal, a new trial or a judicial stay. Those remedies especially need to be considered in light of the court recognizing that “The difference between an acquittal and a judicial stay is said to lie in the residual stigma for the accused, because an acquittal represents a conclusion of not guilty that a judicial stay does not, although the difference in terms of stigma should not be exaggerated.”
Justice Kasirer wrote the majority’s reasons for the judgment, with Justices Wagner, Côté, Rowe and Jamal concurring.
Justice Martin penned the concurring reasons on behalf of Justices Karakatsanis, O’Bonsawin and Moreau.
For Justice Kasirer, the path leading to an acquittal was easy to find. He wrote: “I acknowledge that, where applicable, these are three paths that could authorize an appellate court to enter an acquittal under [Criminal Code] s. 686(2). The first — an acquittal rooted in the lack of evidence to ground a reasonable conviction — is not available on the facts of this case. The second — an acquittal justified by the Crown’s undertaking to the appellate court not to call evidence at a new trial — is available and not controversial. The third path — the so-called ‘discretionary acquittal’ based on the interests of justice notwithstanding evidence justifying a new trial — presents a jurisprudentially more uncertain route. I am inclined to the view that this is not an appropriate appeal in which to consider the framework for discretionary acquittals or to set aside Truscott as the parties urge us to do. That case concerned circumstances, ‘outside of the norm’ (para. 259), that are markedly different from those of Ms. Bouvette.”
Justice Martin felt that discretionary cases, including this one, need the court's attention, especially since lawyers explicitly asked for guidance on this point.
“Both parties and all interveners — the AGO, Innocence Canada, the Canadian Civil Liberties Association, and the Independent Criminal Defence Advocacy Society — implored the Court to bring some clarity and coherence to this underexamined but fundamentally important area of the law. They seek a clear framework for appeal courts to apply when confronted with the appropriate remedy for a miscarriage of justice. They have presented argument, in their written and oral submissions, about the considerations which should inform the exercise of this discretion and argue about their relative merits and disadvantages.”
She continued, arguing that “There are many reasons why this Court is obliged to provide the very guidance that all the parties and interveners have requested. This Court has a ‘responsibility . . . to provide clear and authoritative statements of law and guidance to lower courts’ (R. v. T.W.W., 2024 SCC 19, at para. 79). It is designed and operates to serve “the community’s interest in obtaining an authoritative settlement of questions of law of importance to the whole nation” (see P. H. Russell, “The Jurisdiction of the Supreme Court of Canada: Present Policies and a Programme for Reform” (1968), 6 Osgoode Hall L.J. 1, at pp. 28-29). In the absence of clarity from this Court, intermediate appellate courts and litigants may ‘find themselves mired in uncertainty’ (P. Daly, “Introduction”, in P. Daly, ed., Apex Courts and the Common Law (2019), 3, at p. 14).”
Justice Martin also addressed that cases needing legal remedies from the courts often display “hallmarks of wrongful conviction” — factors that “may come before a court of appeal in different ways, and often after a significant passage of time.” She said these can include:
According to Justice Martin, Bouvette’s “case features many of these procedural and substantive hallmarks,” and those hallmarks “associated with wrongful convictions weighs heavily in favour of an acquittal.”
While the minority opinion may not carry the decision, James Lockyer believes it will hold substantial sway in upcoming cases. A partner at Lockyer Zaduk Zeeh, he represented Innocence Canada as an intervener in this case.
“The first thing is, it’s wonderful news for Tammy Bouvette, who, after all this time, finally gets her well-deserved acquittal… In terms of the systemic consequences of a decision, I think it’s a shame that the majority did not delve into generally when an appeal court should exercise its discretion and enter an acquittal on appeal in a wrongful conviction case. But it’s good to see that four of the judges in their minority judgment did that, and they did it in a way that I think is very important for the disposition of wrongful convictions in the future.”
In particular, he believes that “they have presented a broad basis for the entering of an acquittal in wrongful conviction cases” based on the hallmarks mentioned above.
Beyond not addressing the discretionary question, Lockyer is at odds with the majority due to its take on how an acquittal can help heal the pain from wrongful convictions.
“It really does remove the stigma for them, and it’s how the wrongly convicted view it that matters most. And knowing many of them, I know how important it is that they walk away from the process that has done them so much harm with an acquittal. It’s fair to say that the four justices in the minority recognize that, and in their judgment, make it clear that we should be ready to acquit people who have been wrongly convicted more readily than we have to date, and we need fixed rules, or better-fixed rules about when acquittal should be entered.”
The Canadian Legal Newswire is a FREE newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered on a regular basis, providing targeted news and information of interest to in-house counsel.
Please enter your email address below to subscribe.
