APPEAL WATCH: When Are Acquittals Appropriate on Appeal?

In R v Bouvette, 2023 BCCA 152 [Bouvette] the Court of Appeal for British Columbia (BCCA) set aside a guilty plea and ordered a stay of proceedings where the Crown failed to disclose material documents to the defence. In doing so, they adopted a strict version of the test for when an acquittal is an appropriate remedy on appeal. The Supreme Court of Canada (SCC) has granted leave for appeal to this case (40780), offering it the opportunity to clarify the nature of appellate discretion with regard to entering acquittals. 

The Case

Factual Background

On May 26, 2011, Tammy Marion Bouvette babysat 19-month-old Iyanna Teeple. Late in the morning, Bouvette left Teeple unsupervised in the bathtub for a short period of time (Bouvette, para 15). When she returned, Teeple was face-down in the water and unconscious (Bouvette, para 20). She called 911 and attempted to resuscitate Teeple; by the time emergency personnel arrived, Teeple was not breathing and did not have a pulse (Bouvette, para 16). Although she was eventually resuscitated by the emergency personnel, Teeple was pronounced brain dead on May 27 and died on May 28 (Bouvette, para 16).

The amount of time that Bouvette left Teeple unattended for was unknown. Bouvette initially claimed that she merely turned away to grab shampoo, but she later admitted that she had left the bathroom to clean up a spill in another room (Bouvette, para 20–23). In a statement that was later admitted by the Crown to be involuntary, she claimed that she had left the room for about five minutes (Bouvette, para 33). 

According to her mother, Teeple was in good health when she was dropped off at Bouvette’s house (Bouvette, para 13). While she had suffered from post-viral cerebritis earlier that year — which affected her muscle control — she had healed completely by the date of the incident (Bouvette, para 26). On the morning of the incident, Bouvette claimed that one of her other children had hit Teeple with a toy at least once (Bouvette, para 23). She also admitted that Teeple had fallen from her booster seat prior to being placed in the bathtub (Bouvette, para 31). 

Four days after the incident, Dr. Evan Matshes conducted an autopsy (Bouvette, para 34). He determined that Teeple’s death was caused by drowning, but he could not determine precisely how this drowning occurred (Bouvette, para 35). He also found bruises on Teeple’s head and a tear on her inner upper lip (Bouvette, para 35). Notably, he told the police that these injuries were likely not caused by the fall from the booster seat but instead were consistent with those typically seen in cases of child abuse (Bouvette, para 36, 39). 

On October 24, 2011, Bouvette was charged with second degree murder for the death of Teeple (Bouvette, para 38).

In 2012, the Ministry of Justice of Alberta began reviewing cases which Dr. Matshes had performed autopsies for (Bouvette, para 40). In August 2012, Dr. Anny Sauvageau sent a review of Dr. Matshes’ autopsy of Teeple to the Crown (Bouvette, para 42). She concluded that Dr. Matshes’ finding that Teeples’ injuries were inflicted by a person was unreasonable (Bouvette, para 43). Three other reviewers, Dr. Ross Zumwalt, Dr. Sam Andrews, and Dr. Stephen Cina, disagreed with Dr. Sauvageau; they found that Dr. Matshes’ findings were entirely reasonable (Bouvette, para 44–46). In December 2012, the Crown received a package of documents from the Ministry of Justice of Alberta which contained the complete findings from their investigation of Dr. Matshes’ autopsy (Bouvette, para 59). This package contained the results of a three-member review panel, which concluded that Dr. Matshes’ findings, including his findings on cause and manner of death, were unreasonable (Bouvette, para 64). 

In March 2013, the Crown and defence reached a plea deal: Bouvette agreed to plead guilty to criminal negligence causing death (Bouvette, para 68). She was sentenced to 12 months in prison (Bouvette, para 76). 

Court of Appeal for British Columbia

At issue on appeal was the Crown’s non-disclosure of key documents. Notably, there was no evidence to show that the Crown had disclosed certain documents relating to the review of Dr. Matshes autopsy (e.g., the Ministry of Justice of Alberta’s final report) and Teeple’s post-viral cerebritis (Bouvette, para 83). Both Bouvette and the Crown (represented by a special prosecutor appointed under the Crown Counsel Act, RSBC 1996, c 87) sought an acquittal, or, in the alternative, a stay of proceedings.

The BCCA set aside the guilty plea and ordered a stay of proceedings. 

The court first applied the test from R v Wong, 2018 SCC 25 [Wong] in finding that the guilty plea should be set aside. The first step in this test is an objective assessment of whether “the information unknown to the accused falls within the scope of what an accused must know to enter into a valid plea” (Bouvette, para 89). The BCCA found that the undisclosed information was sufficiently serious to render the accused misinformed and unable to make a full answer and defence (Bouvette, paras 94, 99). Since Dr. Matshes’ findings were central to the Crown’s case, it was crucial for the defence to have full access to the controversies surrounding this evidence (Bouvette, paras 97–98). The evidence on post-viral cerebritis was also significant as the defence may have sought to investigate whether it played a role in the incident (Bouvette, para 98). 

The second stage of the Wong test is a subjective assessment of whether the non-disclosure prejudiced the accused (i.e., whether there is a reasonable possibility that, if the accused had access to the undisclosed evidence, they would have taken a different course of action) (Bouvette, paras 90, 100). The BCCA found that this step had also been passed. Notably, both Bouvette and her counsel suggested that they would have proceeded differently if they had access to the undisclosed materials. The special prosecutor did not contest these assertions. The BCCA further found that these claims were not invalidated when assessing them objectively: “[i]t is not difficult to imagine why, unarmed with critical information that could assist her, this marginalized, overwhelmed and intellectually challenged appellant would enter a guilty plea to a lesser offence” (Bouvette, para 110). 

After setting aside the guilty plea, the BCCA went on to determine the appropriate remedy. They held that an acquittal was appropriate in two situations: (1) where the court is satisfied that no reasonable jury could enter a conviction; or (2) where the circumstances are “highly unusual”, as was the case in Truscott (Re), 2007 ONCA 575 [Truscott], and the court is satisfied that the jury is more likely to enter an acquittal over a conviction (Bouvette, paras 114–115). The BCCA held that the case at hand did not fit into one of those categories. First, they found that a jury could reasonably convict Bouvette of criminal negligence by finding that she knowingly left Teeple — an injured 19-month-old child — alone in the bathtub (Bouvette, para 133). Second, they found that Truscott was distinguishable from the case at hand since (1) there was a theoretical possibility that a new trial could be held and (2) the complete evidentiary record was not available to the court (Bouvette, paras 138–139). Therefore, the BCCA held that an acquittal was not the appropriate remedy.

The court then considered whether a stay of proceedings was appropriate. Citing the test from R v Babos, 2014 SCC 16, the BCCA found that a stay is appropriate where the accused’s right to a fair trial or the integrity of the justice system is prejudiced by the conduct or outcome of the trial and there is no other means of remedying that prejudice (Bouvette, para 120). In cases where uncertainty arises, the court must balance the interests in favour of a stay with the public interest in having the case determined on its merits (Bouvette, para 120). Further, the BCCA noted that while a stay avoids placing the stigma of a conviction on the accused, it nonetheless burdens them with the stigma of having an unresolved case (Bouvette, para 122). Through that lens, the BCCA admitted that, compared to an acquittal, a stay is an inferior remedy from the perspective of the accused (Bouvette, para 122). 

Nevertheless, the BCCA found that a stay was the appropriate remedy in the case at hand. In coming to this conclusion, the court placed emphasis on the fact that Bouvette had already served her full sentence, so ordering a new trial would elongate her punishment (Bouvette, para 144). They also emphasised the additional harm done to Bouvette throughout this case: she began abusing substances, she lost custody of her children, she was assaulted in prison, and she attempted suicide multiple times (Bouvette, para 143). Furthermore, she experienced homelessness, poverty, and social isolation upon her release from prison (Bouvette, para 143). Therefore, while the court found no bad faith on the part of the Crown, they held “that the systemic prejudice…[was] irreparable and would be perpetuated if a new trial were ordered” (Bouvette, para 145).

So, When Do We Acquit?

Considering the recency and clarity of the Wong test, it is unlikely that the SCC will reconsider this issue. Instead, the SCC will likely opine on the remedy invoked by the BCCA. Importantly, the test for where an acquittal is appropriate is not as clear as the BCCA seems to suggest. 

While the BCCA was correct in stating that an acquittal is appropriate where the court is satisfied that a reasonable jury would not convict the accused, they mischaracterized the nature of this test. Viewed properly, this test is sufficient for an acquittal, but it is not particularly necessary — even in the absence of “highly unusual circumstances.” This distinction is clear when looking at the case law cited in Bouvette. In R v Hinse, [1997] 1 SCR 3 [Hinse], for one, the SCC simply held that “[i]n the circumstances, being of the view that the evidence could not allow a reasonable jury properly instructed to find the appellant guilty beyond a reasonable doubt…the appropriate remedy is an acquittal” (para 2). Nothing in this wording suggests that such circumstances are necessary to attract an acquittal.

 The Ontario Court of Appeal’s analysis in Truscott supports this view. When assessing whether an acquittal was the appropriate remedy, the court noted the following:

[i]t is clear that if the appeal court is satisfied…that no reasonable jury could convict, the appeal court’s discretion must be exercised in favour of ordering an acquittal….Apart from those cases where an acquittal is mandatory, the manner in which an appeal court should exercise its remedial discretion is more uncertain (paras 247–248). 

Here, the court suggests that there are other circumstances that could justify an acquittal. Interestingly, however, the court seems to later backtrack on this position, noting that, in normal circumstances, an acquittal is only appropriate where a reasonable jury could not convict the accused (Truscott, para 752). No authorities are cited for this assertion, and it is unclear what constitutes “normal circumstances.” Altogether, therefore, this case law (in addition to others, such as R v Dhillon, 2014 BCCA 480 paras 26–42, R v DRS, 2013 ABCA 18 para 12–19, and R v Maciel, 2007 ONCA 196 at para 46) illustrates the need for the SCC to clarify the test for entering an acquittal on appeal.

Lastly, the second stage of the test — the Truscott exception — adds to this present confusion. While this stage of the test softens the rigidity of the first stage and acts as a recognition that there are other circumstances that are sufficient to attract an acquittal, the focus on “highly unusual circumstances” is too obscure to be effective. While the BCCA searched for direct analogy to the Truscott case in assessing this stage of the test, the SCC would be wise to give a more detailed interpretation of “highly unusual circumstances.”

Overall, in hearing this appeal, the SCC has the opportunity to provide clarification to appeal courts on which circumstances necessitate or otherwise justify granting an acquittal.