Calgary·FIFTH ESTATE

Alberta justice minister calls for probe into prosecutors' handling of autopsy controversy

Alberta’s justice minister says external counsel will be appointed to examine the conduct of Crown prosecutors in the handling of numerous criminal cases relating to alleged flaws in multiple autopsies.

Decision comes as concerns grow over ‘potential injustice’ 

Alberta Justice Minister Doug Schweitzer declined The Fifth Estate's request for an interview. (Rachel Ward/CBC)

Alberta's justice minister says external counsel will be appointed to examine the conduct of Crown prosecutors in the handling of numerous criminal cases relating to alleged flaws in multiple autopsies. 

The call comes after an investigation by The Fifth Estate revealed multiple defendants, facing murder charges, say they were not shown documents from an Alberta Justice autopsy review that raised questions about key evidence in their cases. 

The independent medical expert review, conducted in 2012, found Dr. Evan Matshes came to unreasonable conclusions in 13 cases, several of which involved criminal matters. Matshes, who continues to stand by his work, has left Alberta and now works as a pathologist-for-hire in San Diego.

"I am concerned with allegations related to a former medical examiner's findings from 2010 to 2011, have directed my officials to retain external counsel to review steps taken by the Alberta Crown Prosecution Service regarding matters involving this medical examiner," Alberta Justice Minister Doug Schweitzer said in a statement Friday. 

"Our democracy is grounded on public faith in the administration of justice. As Minister of Justice, I want Albertans to know that we take our responsibility as a government seriously and ensure that we take steps to resolve any potential injustice."

The Calgary Herald first reported the external counsel probe of disclosure issues late Thursday.

Through a spokesperson, Schweitzer said he has instructed the Alberta Crown Prosecution Service to co-operate.

The department declined to say whether or not it had selected the external counsel for the probe. It was not clear if the reviewed non-criminal autopsies will be examined.

The order to appoint external counsel marks a change in position for Schweitzer. One of his representatives previously told The Fifth Estate that Schweitzer could not comment as "this matter predates the minister's time in office."

Call for public inquiry

Last week, the Canadian Civil Liberties Association called for a public inquiry into possible miscarriages of justice related to the handling of the autopsy probe. The minister told CBC he would look into the situation further but stopped short of giving details on next steps.

It's so far unclear how this external counsel investigation will be structured, and whether or not the results will be made public. Alberta Justice spokesperson Jonah Mozeson said further details will be "available in the near future."

One of the accused affected by the autopsy review, Shelby Herchak, told The Fifth Estate she was never given the document known as the Peer Review Form that critiqued Matshes' original autopsy.

Herchak was charged in Calgary with second-degree murder in 2010 after her 26-day-old son Daniel died from blunt-force trauma to the head. Herchak said she later accepted a plea deal for manslaughter to avoid risking a life sentence.

The agreed statement of facts, signed by both defence and Crown lawyers, contained two pieces of information that appear to be contradicted by the expert review panel document.

Shelby Herchak says she first saw the second autopsy opinion when it was shown to her by The Fifth Estate. (Doug Husby/CBC)

Crown prosecutors did not respond to emails from The Fifth Estate about how those facts were included in the sentencing report despite the critique.

Herchak's lawyer, Kim Ross, also told The Fifth Estate he did not receive a copy of the expert review panel document on the autopsy of Daniel Herchak.

In an email to The Fifth Estate, Alberta Crown Prosecution Service head Eric Tolppanen did not respond to a question about whether or not his office did provide the document to defence counsel.

Instead, Tolppanen said that one of the experts from the panel signed off on the agreed statement of facts. The Fifth Estate has been unable to verify this information. The Fifth Estate contacted one of the medical examiners on the panel, who continues to stand by their results.

The former head of Alberta's prosecution service, Gregory Lepp, says he's confident disclosure was provided in this case.

B.C. probe to release results

Earlier this month, the British Columbia Prosecution Service announced it had hired one of the country's top defence lawyers, Marilyn Sandford, as a special prosecutor to probe the conduct of its own Crown lawyers in an affected B.C. case.

The Fifth Estate reported that defence counsel for Tammy Bouvette, a babysitter charged with second-degree murder in the drowning death of a toddler, was not provided a key report that contradicted the evidence used to charge her. Inquiries about that case prompted the hiring of the special prosecutor, B.C. officials said.

Alberta Justice had said it provided B.C. Crown counsel with a copy of the review, yet Bouvette's lawyer said it was not passed on to him.

The B.C. attorney general's office said it intends to make the results of the special prosecutor probe public.

Tammy Bouvette was charged with second-degree murder in 2011. She says the stigma of the accusation resulted in a downward spiral. The B.C. government is probing its own handling of her case. (Doug Husby/CBC)

Tolppanen, now a senior member of Schweitzer's department, was part of the Alberta Justice executive team that handled the 2012 probe.

Tolppanen has said he views the results of the expert panel as "inconsequential" because the Alberta government agreed to set aside the findings after Matshes took them to court. An Alberta Court of Queen's Bench justice ruled that the panel's review was not fair to Matshes and that he had not been given enough time to respond or provide additional materials.

Although Alberta Justice agreed to the quashing, the lawyer representing the ministry told the court it was "integral to the administration of justice" that a second panel investigate the accuracy of Matshes' work.

Now, six years later, no second panel has been ordered.

If you have tips on this story, email Harvey.Cashore@cbc.ca or Rachel.Ward@cbc.ca, or call 416-526-4704.

Follow @harveycashore and @wardrachel on Twitter.

WATCH |  The full The Fifth Estate documentary series, The Autopsy:

About the Author

Rachel Ward

Journalist

Rachel Ward is a journalist with the Fifth Estate. You can reach her with questions or story ideas at rachel.ward@cbc.ca.

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