Out, Damned Spot! The AG’s office says the evidence is gone – but there is evidence of wrongdoing all over in Chaudhary v Attorney General of Canada et al

Fair is foul, and foul is fair: an overview

The latest development in the David and Goliath saga that is The Canadian Government v Alan N Young is as intriguing as always, yet also somewhat disheartening.

It pits Osgoode Hall’s venerable criminal law professor in his role as Co-Founder/Director of the Innocence Project, an organization that engages law students in the investigation of suspected wrongful convictions, against an overburdened judicial system struggling to keep its head above water and shedding weight to stay afloat.

In the middle of it all is Amina Chaudhary, the second woman in Canada to be convicted of first-degree murder since capital punishment was abolished in 1976 [from here – read the article only if you dare, it is Christie Blatchford at her absolute nastiest, circa 1999].

Ms. Chaudhary may still have her life, but it is certainly been a long one behind bars for a crime some say she did not commit.  And now, some twenty years after she was sentenced, the Innocence Project claims autopsy photos of the deceased may help exonerate their client. But, here is the rub – these photos have been lost; and, for all intents and purposes, they no longer exist.

After discovering that this evidence relevant to her case had been misplaced, Mrs. Chaudhary filed an application under Rule 14.05(3)(g.1) (note, this is the same rule relied on in Bedford v Canada, 2010 ONSC 4264 – only they were seeking declaratory orders, and here the relief sought is Charter remedy). The application states:

[I]t is a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms that upon conviction for an offence prosecuted as an indictable offence all evidence and exhibits pertaining to the case be preserved for the lifetime of the offender, unless (1) the offender waives this requirement, or (2) a Court Order is obtained, upon notice to the accused, allowing for the destruction of any or all of the evidence.

The federal and Ontario Attorney Generals brought a motion to strike this motion for application on the grounds that it does not disclose a reasonable cause of action. That motion was granted, and Ms. Chaudhary’s application was struck with leave to amend as recommended by Justice Belobaba.

On its proverbial hands, the Department of Justice should see the stain of a woman who has steadfastly maintained her innocence while earning three degrees behind bars, and a photo that may prove she is been telling the truth, but can no longer be found. Why would they not do anything possible to remove this mark? The price Alan Young put forward for this crime against the people has been deemed unreasonably high. They will let the lady rot – for now.

What is done, is done: some background facts

In 1984, Amina Chaudhary was convicted of the first-degree murder of her ex-lover’s eight-year-old nephew.  Her appeals were unsuccessful, but she has always maintained her innocence. She says she was so convinced the Crown could not convict her that she turned down a plea-bargain offer of accessory to murder, which would have carried a sentence of just 18 months.

Professor Young is quoted here remarking on the strangeness of this offer. He hypothesizes the offer indicated the Crown suspected someone else may have been involved in the murder of the young boy, Rajesh, who was physically subdued and then strangled.

Why would the Crown suspect someone else was present? That relates both to the respondent’s insistence of her innocence and to the recent scandal regarding the lost autopsy photos. Two years before the death of Rajesh, Mrs. Chaudhary fell victim to a brutal machete attack at the hands of her brother. Her arms and chest were so badly maimed that afterwards, she claimed, she could hardly dress herself – let alone beat a boy unconscious or drag his body across a parking lot.

The Innocence Project recently put forward the claim that certain autopsy photos depicting bruising around the deceased’s head might prove “vital” on the application for ministerial review of the case, as authorized by s. 696 of the Criminal Code, RSC, 1985, c C-46 [Criminal Code]. Those photos were not adduced at trial, and were not admitted into evidence. After an extensive search of the Crown Law Criminal Office, it has been admitted that the photos are lost.

The judge notes that the retention of evidence is not uniform in Canada, or even in Ontario. The Toronto Bylaw 689-2000 sets out a detailed retention schedule, generally requiring more evidence be preserved as the seriousness of the crime escalates; fingerprints relating to homicide cases, for instance, are kept indefinitely, but the prints in robberies or sexual assault cases are destroyed five years after the final appeal.

Justice Belobaba also notes that the loss or destruction of evidence is a serious problem for the wrongfully convicted – as evidenced by the cases of Stephen Truscott, Guy Paul Morin and David Milgaard.  The Innocence Project has had to drop seven cases in the past 13 years because relevant evidence could not be found. But, what is the Crown to do? Belobaba J.’s analysis sheds some light on the problems of the claim, and the issues of standing that arose from the wording of the application.

“Look like th’ innocent flower, but be the serpent under’t”: the judicial analysis

Belobaba J remarks that there is no dispute regarding Ms. Chaudhary’s right to seek declaratory relief with respect to her own ministerial review and the lost autopsy photos. An application confined to the facts of her case would disclose a reasonable cause of action. As framed, however, the application is so broad and sweeping that this judge finds two central issues: 1) that the request would be judicially unmanageable, and 2) the applicant may not have standing and/or public interest standing under the specific Charter provisions she seeks remedy under.

On the first point, I would have to agree that the application is eye-poppingly broad. Take a second look: it declares that it is a s. 7 right of fundamental justice that all evidence and exhibits pertaining to all indictable offences be preserved for the u of the offender (unless the offender waives this right, or a judicial order is granted).

Ms. Chaudhary is not arguing for the preservation of evidence in all first-degree murder cases, but in all indictable offences, which include hybrid offences. Furthermore, she is not applying for the uniform preservation of certain types of evidence, which may prove critical for future ministerial reviews, like photographs and DNA samples, but all evidence.  This would include: property belonging to third parties (like stolen cars) evidence that is transitory (like crime scenes in people’s houses) and evidence that is perishable or hazardous to public safety (like corpses, toxic chemicals, and illegal substances) (para 16).

On the second point, the problem of standing, there are two sub-issues: private standing as it relates to s. 24(1), and public interest standing.

Ms. Chaudhary is not challenging a law or regulation, and cannot base her claim under the supremacy clause set out in s. 52 of the Charter. Owing to the fact that there is no law to regulate the harm that has potentially been done to her, she must bring her case under an application according to the Rules of Civil Procedure, RRO 1990, Reg 194, specifically Rule 14.05(3)(g.1) which allows a remedy under the Charter. The applicable remedy is s. 24(1), which provides

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

In this judgment, it is made out that s. 24(1) has a very narrow window for standing – even narrower than s. 52(1). A quick reading suggests this cannot be the case, you might think, but the constitutionally omnipotent Peter Hogg puts forward the assertion (Footnote 2, para 20). The right to remedy under s. 24(1) is said to be limited to someone whose rights have been infringed or denied. While that criterion may, after a case for it is made and argued on the merits, apply to the respondent, it can conclusively be stated that it does not extend to the whole range of criminals incarcerated for indictable offences cited in her application.

If public interest standing is available under s. 24(1), then the judge further asserts that the test for standing has not been satisfied. As outlined in Borowski v Canada (Attorney General), [1989] 1 SCR 342, the public standing litigant must show that:

  • There is a serious issue raised
  • The plaintiff is directly affected by the legislation or that the plaintiff has a genuine interest in its validity.
  • That there is no another reasonable and effective way to bring the issue before the Court.

While Ms. Chaudhary satisfies the first two requirements, she is said to fail the third, for she is not directly affected by the lack of uniform evidence retention standards as it relates to those convicted of hybrid offences, for example, or she is not affected by the lack of nation-wide legislations governing her issue. “There are clearly other and better litigants,” writes Belobaba J.

I would like to hope that cases of wrongful conviction are relatively rare. And, I would like to think that when the court gets a wind of a potential wrongful conviction where the Crown has lost potentially relevant evidence that any judge would be bending over backwards to make it right. In this case, this is clearly is not so. If anything, the judge simply mourns the drafting of the respondent’s application, and calls for its overhaul and reapplication.

I think the Charter has been interpreted to exclude Ms. Chaudhary from bringing her application chiefly because the application was so dauntingly broad. Who wants to be the judge that tells the government that, in effect, the police can no longer return stolen property, destroy illegal drugs, or cremate corpses without judicial decree? Not me, and not Justice Belbobaba. I want to blame him, but I cannot.

Screw your courage to the sticking-place: what comes next

In his reasons, Belobaba also briefly states that the legislature is under no duty to legislate, and that there is no s. 7 right relating to the preservation of evidence post-conviction. These comments effectively serve as kicks in the side to an already fallen foe on this application, but he promises they will become relevant if this case is reviewed on the merits that pertain directly to Ms. Chaudhary.

I eagerly await that judgment, if only for an answer to this question: how can the legislature not be under an obligation to legislate to protect the rights of our nation’s most vulnerable, those who have already had almost every other right taken away from them?

My own thoughts about this decision primarily revolve around the wording of the motion the court struck down. Did it have to be drafted to exonerate each and every one of Ms. C’s fellow inmates? Or did her counsel, a man held up as one of the most influential lawyers in Canada, a revered law professor and champion of underdogs the country over, try to bite off more than the court could chew? I can only imagine that after years of fighting the behemoth that is the Department of Justice, Professor Young tried to pull the wool over their eyes, just this once. He did not want to have to limit the facts to this case, but wanted the court to mandate that the government must retain all of the evidence in any of the cases he might see over at the Innocence Project headquarters. In any event, the case still holds plenty of personal and legal intrigue, and I eagerly await the result of the next round of Young v The Government of Canada.

The media will have its say in all high-profile murder cases, and Ms. Chaudhadry’s write-ups have run the gauntlet from authors calling her a, “a child-killing, baby-making sex machine” to being quoted as saying, “I am so cursed with bad luck.”

Whatever is closest to the truth, the fact of the matter as I see it is that it does not matter if Ms. Chaudhary is innocent or guilty – she could be a catalyst for a scheme for retention of evidence that will ensure this sort of snafu never plagues the Innocence Project, or our justice system, again.

Who is a better litigant to argue for an improved standard for evidence retention than someone who may never get to prove her innocence because of a Crown oversight? Once the application is phrased in a way that is judicially manageable, say, limiting it to those convicted of murder, Ms. Chaudhary could be the face of hope for the wrongfully convicted.

Someone has to represent those who have been incarcerated but still maintain their innocence, and those people are going to have to be on the outside. I would like to say, shame on you, disorganized Crown, for losing evidence – and congratulations, Professor Young, for taking note. Now back to the drafting table.

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