Acquitted on appeal

Supreme Court acquits Tammy Bouvette after non-disclosure tainted her guilty plea

A babysitter pleaded guilty to criminal negligence causing a toddler's death without being told that peer reviewers had found the pathologist's opinions unreasonable. The Court of Appeal quashed the conviction but only stayed the charge. The Supreme Court replaced the stay with an acquittal, splitting five to four on why.

R. v. Bouvette, 2025 SCC 18

Court: Supreme Court of Canada
Decided: Jun 6, 2025
Conviction to this result: 12 years
Sentence: 12 months' imprisonment followed by probation on strict terms (fully served)

Appeal allowed. The judicial stay entered by the Court of Appeal was set aside and an acquittal was entered on the charge of criminal negligence causing death. An appeal court set the conviction aside and entered an acquittal.

What happened

In May 2011 a 19-month-old child whom Ms. Bouvette regularly babysat became unconscious in the bath at her home in British Columbia and died in hospital soon afterward. Ms. Bouvette, then 27, was alone with the child and two of her own young children. She called 9-1-1 and was attempting resuscitation when first responders arrived. Her accounts to police varied. The forensic pathologist who performed the autopsy, Dr. Evan Matshes, found bruising and a lip injury, concluded the cause of death was drowning and the manner undetermined, and told police the injuries had no benign explanation. In October 2011 she was charged with second degree murder. Before she pleaded, Alberta Justice began a formal review of Dr. Matshes' work. In 2012 it sent the British Columbia Crown material, including a 140-page external peer review in which three forensic pathologists concluded his opinions in this case were unreasonable. The Crown did not disclose this to the defence. Nor did it say it had decided one of her police statements was involuntary. In May 2013, on counsel's advice and believing she faced 25 years, she pleaded guilty to criminal negligence causing death. No plea comprehension inquiry was held. She was sentenced to 12 months' imprisonment and probation. She served the sentence, lost custody of her four children, and fell into addiction, homelessness and poverty. In 2020 a special prosecutor was appointed. In 2023 the Court of Appeal quashed the conviction as a miscarriage of justice but entered a stay rather than an acquittal, finding a reasonable jury could still convict.

Procedural history

May 2011
A 19-month-old child in Ms. Bouvette's care became unconscious in the bath and died in hospital soon after.
Oct 24, 2011
Ms. Bouvette charged with second degree murder.
Aug 28, 2012
Preliminary inquiry: Dr. Matshes testified for the Crown; Ms. Bouvette was later ordered to stand trial for second degree murder.
Dec 13, 2012
Crown counsel received a 140-page external peer review package from Alberta Justice critical of Dr. Matshes; it was not disclosed to the defence.
May 13, 2013
Guilty plea, entered through counsel, to criminal negligence causing death; murder charge stayed; no plea comprehension inquiry held.Trial court
2013
Conviction entered; sentence of 12 months' imprisonment and probation.Trial court
Jan 2020
British Columbia Prosecution Service appointed a special prosecutor to review the case for a possible miscarriage of justice; previously undisclosed material was later disclosed.
Mar 2021
Notice of appeal and application to extend the time to appeal filed.Court of Appeal for British Columbia
Undated
Extension of time to appeal granted on consent by a judge of the Court of Appeal (reported as 2022 BCCA 9). The headnote describes the extension as allowed in 2021; the decision does not state the date of the order.Court of Appeal for British Columbia
Undated
Fresh evidence application on the non-disclosure filed with the appeal.Court of Appeal for British Columbia
2023
Fresh evidence admitted, guilty plea vacated, conviction quashed as a miscarriage of justice; acquittal refused; judicial stay of proceedings entered (2023 BCCA 152).Court of Appeal for British Columbia
Nov 14, 2024
Appeal heard.Supreme Court of Canada
Jun 6, 2025
Appeal allowed; stay set aside; acquittal entered.Supreme Court of Canada

The offence and its elements

Criminal negligence causing death

Criminal Code, R.S.C. 1985, c. C-46 (the decision does not cite the specific section for this offence)

What the prosecution had to prove:

The accused did something, or failed to do something it was her legal duty to do, in relation to a child in her carenot addressedGeneral law: check the current text
That conduct showed wanton or reckless disregard for the life or safety of the child, amounting to a marked and substantial departure from what a reasonable person would have done in her circumstancesdisputedFrom the reasons
The conduct caused the child's deathnot addressedFrom the reasons

The questions on appeal

Did the evidence on the record require an acquittal because no reasonable jury could convict?: No. All nine judges agreed with the Court of Appeal on this point. Even setting aside Dr. Matshes' opinion, there was admissible evidence that the child had a visible injury from a fall that day, was left alone in the bath for about a minute, and became unconscious. A properly instructed jury could, on a limited weighing of that record, find a marked and substantial departure from reasonable care. Evidence the Crown says it will not call is not the same as inadmissible evidence, so it stays in the analysis.
Must an appellate court acquit when the Crown asks for an acquittal and undertakes to call no evidence at any new trial?: Majority (Kasirer J., five judges): yes, unless it would be contrary to the public interest. The appellate court is simply entering now the acquittal a trial court would inevitably enter; forcing a formal retrial wastes resources and prolongs distress. Concurrence (Martin J., four judges): the Crown's position deserves significant weight and deference like a joint submission, but the court keeps its discretion and is not bound.
Should the Court adopt a broad discretionary framework for acquittals where a conviction remains possible?: Majority: not in this case. The parties agreed with each other, so the point was not tested by adversarial argument, and the outcome did not depend on it. Broad, unweighted factors risk diluting what an acquittal means and having appeal courts act as a thirteenth juror. The Truscott reference was distinguished, not overruled. Concurrence: the Court should give guidance now. In cases bearing the hallmarks of wrongful convictions, courts should weigh the nature of the miscarriage, the likelihood of acquittal at a retrial (generally needing a finding that acquittal is more probable than not), and the equities.
In what order should an appeal court consider acquittal, new trial and stay?: The two sets of reasons differ here. The majority treats the stay as a third available order after quashing, but says acquittal must be considered first, with a new trial or a stay considered only where an acquittal is not warranted. Martin J. says s. 686(2) sets no particular order between acquittal and a new trial, which are the two presumptive remedies. She does insist that a stay is a remedy of last resort, not on equal footing with those two, and may be considered only after the court has conclusively ruled out an acquittal and concluded that a new trial would be inappropriate.

The law the court applied

Unreasonable verdict standard (evidentiary ground for acquittal)

Whether a properly instructed jury acting judicially could reasonably convict on the record as supplemented by fresh evidence. If not, acquittal is mandatory. The appeal court does a limited weighing only and must not substitute its own view of the evidence.

R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180

Crown undertaking ground for acquittal (new, majority)

Where the Crown seeks an acquittal and undertakes to call no evidence at a new trial, the appeal court must acquit unless that would be contrary to the public interest, by analogy to respect for joint submissions.

R. v. Bouvette, 2025 SCC 18; R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204

Interests of justice framework (concurrence)

For cases with procedural and substantive hallmarks of wrongful convictions, consider the nature of the miscarriage, whether acquittal at a retrial is clearly more probable than not, and the equities. Equities alone cannot justify an acquittal.

Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; Dunlop v. The Queen, [1979] 2 S.C.R. 881

Judicial stay of proceedings

A drastic remedy available only in the clearest cases to prevent an abuse of process affecting trial fairness or the integrity of the justice system.

R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O’Connor, [1995] 4 S.C.R. 411

What the court decided

The appeal was allowed, the stay set aside and an acquittal entered. The majority held that Ms. Bouvette had not shown the record could support no reasonable conviction, but that she had to be acquitted because the Crown asked for an acquittal and undertook to call no evidence if a new trial were ordered. An acquittal in those circumstances is the only just outcome and avoids pointless proceedings. The majority declined to define a broader discretionary basis for appellate acquittals. The four concurring judges reached the same result through an interests of justice framework for cases bearing the hallmarks of wrongful convictions, finding the remaining Crown case weak, acquittal more probable than not at any retrial, and the equities heavily in her favour. The Court stressed that an acquittal means the Crown has not proved guilt; it is not a court declaration of factual innocence.

What happens next: The acquittal brings the proceedings to a final end. The decision records no further step.

Analysis

This is our commentary, separate from the court’s reasons.

Why the Crown's undertaking decided the case

The point of division was never whether Ms. Bouvette deserved an acquittal; every judge thought she did. It was what legal reason could support it when the record still allowed a conviction. The majority found a narrow and tidy route. A trial at which the Crown calls no evidence can only end one way, so an appellate acquittal just saves everyone the trip. This matters because it turns a prosecutorial choice into a predictable judicial outcome. In past wrongful conviction cases, a new trial order left the accused waiting on the Crown to decide between a prosecutorial stay, a withdrawal, or calling no evidence, with very different consequences for finality and stigma. Now, where the Crown is prepared to commit on the record, the appeal court will give that commitment immediate effect. The route depends on the Crown being willing to say what it would do. If it stays silent, the ground is not available.

What the Court did not decide, and what the concurrence offers

The majority's caution is deliberate. It saw two parties agreeing on a long list of unweighted factors and worried that "argued law is tough law" cuts the other way when nobody is arguing. It left the Truscott reference standing and said future contested cases should shape any discretionary ground. For appellants whose Crown will not concede, this means the law remains as it was: acquittal if no reasonable jury could convict, otherwise usually a new trial, with a stay reserved for the clearest cases. The concurrence, though not binding, is a detailed roadmap that four judges endorsed. Its list of procedural and substantive hallmarks of wrongful convictions, its rejection of any requirement that a retrial be impossible or that the record be complete, and its more probable than not standard will likely be cited in provincial appeal courts. Counsel in future cases should expect to argue both sets of reasons.

The wrongful conviction patterns on display

This case gathers several familiar failures. Material about an expert's reliability sat in a Crown file while a vulnerable accused weighed a plea. The expert's opinion drove both the murder charge and the plea bargain that followed. A guilty plea was taken without the comprehension inquiry the Code requires, from a woman with a diagnosed cognitive disability facing what she believed was a 25-year sentence. The remedy problem it exposes is also familiar. Non-disclosure followed by a plea meant there was no trial record and no tested cross-examination of the expert. That did not make the ordinary evidentiary route to acquittal unavailable; both sets of reasons applied it and concluded the record could still support a conviction. What the gap did was weaken Ms. Bouvette's ability to argue that route persuasively, which the concurrence identifies as a feature of wrongful conviction cases in its own right. The concurrence treats an incomplete record as a reason for flexibility, not an impediment; the majority treats the same gap as a reason for restraint about what appeal courts can safely say on the merits. Both agree that the eventual answer came from a special prosecutor's review, more than seven years after the plea, rather than from any routine safeguard.

If this feels close to home

Quashing a conviction removes it, but it is not the end of the question. The appeal court must then choose among an acquittal, a new trial and a judicial stay; the majority says acquittal must be considered first. A judicial stay ends the proceedings for good, so the person cannot later be convicted on that charge, but it says nothing about guilt and leaves the allegation unresolved on its merits. An acquittal is a finding of not guilty.
If the Crown agrees an acquittal is right and is willing to say it would call no evidence at a retrial, the Supreme Court has now held an appeal court must give effect to that and acquit, unless the public interest requires otherwise. Asking the Crown to state its position on a retrial can matter a great deal.
Non-disclosure that could have affected a decision to plead guilty can be a miscarriage of justice even years later. Extensions of time to appeal and fresh evidence applications are the usual procedural tools, and both were used here.
An acquittal is a finding that guilt was not proved. It is not a court declaration of innocence, and the Court said appeal courts have no power to make one. Families should understand that distinction when weighing what an appeal can deliver.
Where the Crown does not concede, the test for an evidentiary acquittal remains strict. The broader discretionary framework favoured by four judges is not yet the law, though it may be argued in future cases.

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What went wrong

Evidence not disclosed Flawed forensic science False guilty plea

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Oct 30, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

Citations

R. v. Bouvette, 2025 SCC 18 The decision under review
2023 BCCA 152Court of Appeal decision quashing the conviction and entering a stay
2022 BCCA 9Extension of time to appeal granted
Criminal Code, R.S.C. 1985, c. C-46, s. 686(2)Appellate remedial powers: acquittal or new trial after quashing; s. 686(8) for ancillary orders including a stay
Canadian Charter of Rights and Freedoms, ss. 7, 24(1)Right to disclosure and full answer and defence; remedial power
Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321Earlier framework for acquittal in the interests of justice; distinguished by majority, relied on by concurrence
R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381Unreasonable verdict standard
R. v. Yebes, [1987] 2 S.C.R. 168Unreasonable verdict standard
R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180Appeal courts must not act as a thirteenth juror
R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309Stay of proceedings as a drastic remedy for the clearest cases
R. v. O’Connor, [1995] 4 S.C.R. 411Abuse of process and stays
R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204Respect for joint submissions, applied by analogy
R. v. Stinchcombe, [1991] 3 S.C.R. 326Crown duty of disclosure
Dunlop v. The Queen, [1979] 2 S.C.R. 881Earlier Supreme Court acquittal partly on equitable factors
R. v. Hinse, [1997] 1 S.C.R. 3Prior Supreme Court acquittal for a miscarriage of justice
R. v. Mullins-Johnson, 2007 ONCA 720, 87 O.R. (3d) 425Appeal courts cannot declare factual innocence
Grdic v. The Queen, [1985] 1 S.C.R. 810There are not different kinds of acquittals
Inquiry into Pediatric Forensic Pathology in Ontario: ReportDangers of unreliable pediatric forensic pathology evidence (concurrence)

Sources

R. v. Bouvette, 2025 SCC 18

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.