B.C. Crown prosecutors wrongfully withheld evidence — Class action filed against Island Health for unlawful detentions
April 17, 2023 – As regular readers will know, Second Opinion QB has featured a series of articles over the past year about two local families and their struggles with B.C. provincial government authorities and law enforcement organizations.
Recently, several legal cases launched in the B.C. courts have implicated the same government and law enforcement agencies, cases that shine a spotlight on the two local stories we have been covering.
In one case, the Vancouver Island Health Authority (Island Health) is named in a class action lawsuit recently filed in the B.C. Supreme Court on behalf of adults who have been unlawfully apprehended under B.C.’s Adult Guardianship Act.
In the second case, a B.C. Court of Appeal decision issued this past week found that the B.C. Prosecution Service withheld evidence in a criminal case, resulting in a “serious” miscarriage of justice.
We published several stories about the 2021 hit-and-run death of Qualicum Beach resident Colm Harty and the family’s efforts to obtain information about his death. No charges were laid against the driver despite multiple witnesses, and no explanation was provided by the B.C. Prosecution Service (aka the Crown).
Leaving the scene of a motor vehicle accident is an offense under the Criminal Code of Canada which, if it results in the death of a person, charges must be filed (s. 320.16(3)).
The BCPS refused the Harty family’s request for records relating to their decision not to approve charges that the RCMP recommended. In reply to our inquiries, BCPS spokesperson Dan McLaughlin stated in an email to Second Opinion QB that, “In this case the assessing Crown Counsel was unable to conclude that the standard for approving charges was met so no prosecution will proceed.”
The Harty family appealed to the B.C. Office of the Information and Privacy Commissioner. The OIPC agreed to conduct a Review of the B.C. Prosecution Service’s decision to refuse the family’s request for information.
As explained in our recent story about the reluctance of authorities to disclose information, according to VictimsInfo.ca, unlike most other jurisdictions, in B.C. “the Crown reviews the police investigation report and decides, based on the evidence, case law, and their experience, if there is a strong likelihood of getting a conviction. This is called the ‘evidentiary test’. Crown counsel also decide if a prosecution is in the public interest (based on, for example, the possible danger the suspect poses to others in society). This is called the ‘public interest test’.”
We wrote, “In theory, this [requiring the Crown to lay charges instead of police] seems like a prudent check on police practices, but it can also provide an opportunity for delay, error, bias, obfuscation or even political interference, particularly when information is withheld from public scrutiny.”
That this system – ostensibly lacking any meaningful oversight – provided an opportunity for miscarriage of justice was made abundantly clear by this past week’s decision of the B.C. Court of Appeal.
B.C. Court found Prosecution Service withheld evidence in a criminal case
On April 12, 2023, the B.C. Court of Appeal issued a written decision stating that the B.C. Prosecution Service had withheld evidence in a criminal case, resulting in a “serious injustice.”
The Court “quashed” the conviction of Tammy Bouvette, who had pleaded guilty to criminal negligence in the drowning death of a toddler in 2012, and for which she served her entire sentence. Citing a lack of disclosure of exculpatory evidence by the B.C. Prosecution Service — brought to light by journalists at the CBC News documentary show, The Fifth Estate — the Court ruled that Bouvette was the victim of “systemic prejudice.”
“The B.C. Court of Appeal has determined that the BC Prosecution Service (BCPS) failed to disclose to her defence lawyers several items of key evidence, including that [autopsy] report, which supported Bouvette’s claim she had not hurt or neglected the child,” the CBC reported.
The Court of Appeal decision noted that the BCPS also failed to provide past medical records which showed that 19-month-old Iyanna Teeple of Cranbrook, B.C. had “a recent past history of a brain infection” before her death.
“The failure of the Crown and/or police to disclose relevant information violated the appellant’s right to make full answer and defence,” the panel of judges said, “information of considerable significance to the defence.”
The court decision states, “the non-disclosure constituted a serious breach.”
“It renders the appellant’s guilty plea invalid as it deprived her of an opportunity to make an informed choice about how to proceed. 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 high court explained.
The CBC reported, “a spokesperson for the prosecution service declined an interview Wednesday with The Fifth Estate and sent a statement saying the agency has implemented a series of checks and balances to prevent future disclosure problems.”
“Our failings in that regard … were significant and resulted in a miscarriage of justice,” Dan McLaughlin said in an email to the CBC. “The BCPS acknowledges mistakes were made.”
Bouvette’s former lawyer, Jesse Gelber, told The Fifth Estate he did not receive the autopsy review, despite asking the Crown prosecutor if further disclosure was available.
By law, prosecutors must provide defence counsel with all relevant documents in a criminal case.
Without knowing about the autopsy review finding in her favour, Bouvette pleaded guilty to criminal negligence in order to avoid a life sentence for second-degree murder.
During their investigation, The Fifth Estate “inquired with the B.C. Prosecution Service about whether it had received those documents. After waiting for a response for several days, journalists received the notice that [a] special prosecutor would be investigating the [BCPS’s] conduct.” The statement said the investigation’s results will be released at an “appropriate time” and that neither the Prosecution Service nor the special prosecutor “will comment further.”
The special prosecutor appointed to review the BCPS’ conduct, well-known Vancouver defence lawyer Marilyn Sandford, recommended that Bouvette’s legal team be provided with all of the evidence uncovered during her investigation. An appeal was then launched with the admission of the new evidence.
“Shame on them for not doing their job right,” Bouvette said in 2020 when contacted by the CBC. “It has taken everything from me: my freedom, my whole self, everything.”
Class action lawsuit filed against B.C. health authorities for unlawful detention of vulnerable adults
A proposed class action lawsuit alleges that health authorities in British Columbia have been illegally detaining adults against their will, and in violation of their Charter rights.
Several British Columbia health authorities, including the Vancouver Island Health Authority (Island Health), are being sued for the alleged abuse of their emergency powers to detain “vulnerable individuals” against their will under the province’s Adult Guardianship Act (AGA), according to a story reported by Business in Vancouver.
Documents submitted to the court state that “the defendants [health authorities and certain other agencies] developed and implemented a systemic practice whereby they detain individuals under their purported emergency assistance power without the individual’s consent – even where the individual has capacity to refuse – and without promptly seeking court orders authorizing the detentions.”
The Notice of Claim was filed in B.C. Supreme Court on November 25, 2022 by Brydon Wardel, a 52-year-old resident of Surrey, B.C.
The claim states that the involuntary detentions “constituted the tort of false imprisonment, and led to psychological and physical damage to vulnerable individuals, in many instances aggravating their preexisting traumas and disabilities.”
Predatory home-invasion style tactics allegedly used by authorities
Some of the reportedly egregious circumstances that led to the filing of this proposed class action are remarkably similar to a story about the apprehension of a local couple that Second Opinion QB reported last year, a case that is still in the courts.
In the Surrey, B.C. case, the Notice of Claim alleges that in July 2020, “several members of the RCMP and a community health worker from the Fraser Health Authority (the “FHA”) arrived, unannounced, at the plaintiff’s residence. On arrival, the RCMP members asked the plaintiff to identify himself and then told him that the FHA health worker had to ask him several questions privately.”
The plaintiff alleges he was taken into a laneway adjacent to the house for questioning where, “[t]he FHA health worker explained that they had received a report that the plaintiff was being abused by his housemates. The allegations included that he was being raped, that he was being prostituted to earn money for the family, and that he was being physically abused. The plaintiff denied that any of this had occurred.”
During the questioning, the claim alleges, the RCMP members kept the other residents in the home and refused to disclose what was happening. No questions were asked of them. The RCMP and FHA worker returned, unannounced, a day later, whereupon the plaintiff again denied their allegations.
Several days later, “the same RCMP members and FHA health worker arrived at the home unannounced. The plaintiff was alone. On answering the door, the RCMP members told the plaintiff he was being detained. He was asked to put his hands out, was handcuffed, and placed in a black unmarked SUV. He was then driven to Surrey Memorial Hospital.”
The plaintiff alleges he was not permitted to leave, not permitted to speak with anyone, not allowed visitors. “On the third day he was allowed to leave his room, and had an opportunity to use a phone to call his housemates,” who had been frantically trying to get a lawyer for him.
The claim states, “Unknown to the plaintiff, he was being detained under a “do not acknowledge” status, which means hospital staff were not allowed to acknowledge his presence if anyone attempted to contact him by phone or in person. When the plaintiff’s lawyer called, the hospital staff refused to acknowledge that he [his client] was there.”
The claim does not identify the organization or person who made the allegations resulting in the apprehension of the plaintiff by police and health workers.
The allegations in the proposed class action lawsuit have not been tested or proven in court. By law, the defendants were required to file their Responses within 21 days of the date the lawsuit was filed and served, November 25, 2022.
A review of the Court registry shows that the defendants have apparently not filed any Response to the Notice of Claim, now four months later.
The class action for those detained under the Adult Guardianship Act is open to individuals who have been affected by unlawful detentions in British Columbia, who meet the eligibility criteria. People interested in joining the class action may contact Vancouver law firm Klein Lawyers LLP to determine if they qualify to participate. Contact: https://www.callkleinlawyers.com/class-actions/adult-guardianship-class-action/
A copy of the Notice of Civil Claim can be viewed here: