The Current

'Get to the bottom of this': Civil liberties group wants inquiry into buried records in Alta. criminal cases

Michael Bryant, executive director of the Canadian Civil Liberties Association, says Alberta should hold a public inquiry after an investigation by The Fifth Estate found possible problems were raised about the work of a forensic pathologist involved in criminal cases.

Concerns follow Fifth Estate investigation into work of forensic pathologist

Michael Bryant, executive director of the Canadian Civil Liberties Association, is calling for a public inquiry into potential 'miscarriages of justice' in Alberta. (Canadian Civil Liberties Association)
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The Canadian Civil Liberties Association is calling for Alberta to conduct a public inquiry into why there were no follow-ups after a previous inquiry revealed possible flaws in a forensic pathologist's evidence in several criminal convictions, including murder cases.   

The concerns follow a recent investigation by the CBC's The Fifth Estate into autopsies carried out by medical examiner Dr. Evan Matshes.

"There may be people in jail right now who shouldn't be in jail," said Michael Bryant, a lawyer and executive director of the Canadian Civil Liberties Association. 

"You got to get to the bottom of this, because obviously there's been miscarriages of justice," he told The Current's Matt Galloway.

"And the only way to rectify it, ultimately, is through a public inquiry."

In 2012, an expert panel of pathologists was commissioned by the Alberta government to review some of the work of Matshes. The panel found that Matshes came to "unreasonable conclusions" in 13 cases, including autopsies used in murder investigations. 

The inside story of how senior Alberta government officials ultimately abandoned their probe into miscarriages of justice. 0:48

The Fifth Estate discovered that some of the defendants in those criminal cases — who were sent to prison — were never told about the panel's findings.

Those findings offer a second opinion, which raise questions about the forensic evidence used to lay charges.    

Matshes did not speak to The Fifth Estate, but in a statement said he stands by his work, and has done nothing wrong.

Court documents obtained by The Fifth Estate show that Matshes and his lawyer sent a series of letters and emails to Alberta Justice, asking that the findings be set aside following the report's completion. The ministry defended its work and said it was necessary to ensure no miscarriages of justice had taken place.

But in November 2013, Alberta Justice said Matshes was not properly consulted on the report. Both parties agreed to set aside the findings, and had a judge formally approve the agreement with an "order to quash."

But in a brief to Court of Queen's Bench, Alberta Justice said it was "integral to the administration of justice" that they continue their probe of Matshes's work, and that "the administration of justice demands a new external review panel be conducted." 

On Monday, Alberta Justice Minister Doug Schweitzer told CBC News that anyone concerned their case wasn't handled properly could work with their defence lawyer to bring it forward to the courts. (Rachel Ward/CBC)

At a news conference Monday, Alberta Justice Minister Doug Schweitzer told CBC News he had reviewed The Fifth Estate's reports, and while he did not answer questions directly, he did not rule out a review or inquiry.

The minister said he asked his department for more information following the reports.

"I want to hear back from the department first before I assess what options we're going to look at going forward, but everything's on the table," Schweitzer said.

He declined to answer questions about the disclosure of the review of Matshes's autopsies, but said that anyone concerned their case wasn't handled properly could work with their defence lawyer to bring it forward to the courts.

"I can't speak to the specifics — this was years ago — as regarding disclosure that was or was not given to any different lawyer," Schweitzer said.

An autopsy tells the story of the dead but can also determine the future of the living. 30:22

Why is this happening again?: Bryant

Bryant was Ontario's attorney general when an independent review found possible problems with the work of Dr. Charles Smith in 2007. That review found Smith made questionable conclusions of foul play that were used in evidence in 13 criminal convictions.

As soon as we had the information that in fact bad science had put people in jail … we got those people out of jail.- Michael Bryant

Bryant says the findings prompted a quick response from the province's justice ministry. 

"As soon as we had the information that in fact bad science had put people in jail … we got those people out of jail," he said.

Those people were not immediately exonerated, but released on bail pending further investigation. 

The inquiry into Smith's work published 169 recommendations in 2008.

An independent review found problems with the work of Dr. Charles Smith in 2007. It said he reached questionable conclusions of foul play that were used in evidence in 13 criminal convictions. (Adrian Wyld/Canadian Press)

Bryant says the recommendations were "obviously available to all the justice ministers across the country, saying here are the things to watch for, and here are the things to do to prevent it."

"Why the hell is this happening all over again?" 

Bryant says he's not convinced something like this won't happen elsewhere in Canada, and is calling on federal Justice Minister David Lametti "to learn from this lesson of intergovernmental omission and failure to do something."

"It's all about sending up checks and balances, independent checks and balances within the system to prevent this from happening," he said.

"And once it happens, to immediately deal with the urgent matters of launching new investigations and making everything public that they can possibly make public."


Written by Padraig Moran, with files from Rachel Ward, Harvey Cashore and Mark Kelley. Produced by Ben Jamieson.

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