Alberta Justice Officials Withhold Medical Reports While the Wrongly Convicted Sit in Prison

Friday, January 17, 2020

A recent expose on CBC’s the Fifth Estate dropped a bombshell on the criminal justice system after they revealed that Alberta Justice buried medical reports contradicting autopsies that were relied on in court to convict multiple people, many of whom were charged with murder. 

The revelations came after a six-month investigation that found senior officials at Alberta Justice were aware of a report compiled by an expert medical panel that shook the foundations of several murder charges and cast in doubt a significant number of findings of a medical examiner in Calgary. 

At issue in the buried medical reports were some of the autopsies performed by Dr. Evan Matshes, a forensic pathologist working in the Office of the Chief Medical Examiner in 2010 and 2011. After concerns were raised in relation to some of his findings, Alberta Justice launched an inquiry into whether or not there had been miscarriages of justice as a result of his conclusions.

Dr. Matshes performed more than 250 autopsies in his time at the Calgary medical examiner’s office. 

Senior officials at Alberta Justice were so concerned about the potential of people being wrongly convicted, they hired an external review panel of three U.S. forensic pathologists to asses Dr. Matshes’s work. 

The panel later reported that Dr. Matshes had made “unreasonable” findings in 13 of 14 cases reviewed. Five of those cases were in relation to criminal offences. 

A basic tenant of the criminal justice system is an accused person’s constitutionally protected right to full disclosure of the case against them. What this means is that the government must provide an accused person with all disclosure that could be relevant. Despite this basic principle, the Fifth Estate’s investigation revealed that in several criminal cases in which the accused was convicted, the expert panel’s findings were not provided to defence counsel, the accused and that the reports were buried for years even while those wrongly convicted were rotting in jail for a crime they might not have committed.

Insurance Company Raised Concerns

Alberta Justice began looking into Dr. Matshes’ work in 2012 after an insurance company questioned his findings in relation to an accidental death. As a result of the concerns, a panel of three forensic pathologists was selected to review a number of autopsies including cases that had led to second-degree murder charges. 

One of those cases involved 18-year-old Shelby Herchak who was vilified in the media as a baby killer. In 2010, she was charged with second degree murder after her 26-day old son dies of blunt force trauma to the head. Herachak later took a plea deal for manslaughter and served over five years in jail. 

Matshes’ autopsy report stated that there were multiple injuries to the baby’s head, including one that was two weeks old. As a result of the autopsy findings, Herchak was charged with second degree murder and faced a possible life sentence. 

The expert review panel disputed that there was evidence of the earlier injury to the baby’s head and raised concerns that Dr. Matshes mistook a natural separation in a newborn’s skull, which is not fully fused, with a fracture. 

The panel’s findings were consistent with Herchak’s repeated assertion that she dropped her baby after waking-up suddenly with the baby on her chest. 

“I did not kill my son. It was an accident. I dropped him.” Herchak said. 

The Fifth Estate investigation found that Alberta Justice was provided with the new evidence contradicting Dr. Matshes’ report well before the murder trial was set to begin, but failed to disclose it to defence counsel. If this is true, senior officials at Alberta Justice are directly responsible for an innocent person being sent to jail and branded a baby killer. 

Herchak first learned of the report from the Fifth Estate. She told them that she felt she had no choice but to plead guilty because no jury would believe her over a doctor. She took the plea deal to avoid a life sentence. 

Alberta Justice Buried the Reports

In a series of letters and emails to Alberta Justice in 2012 and 2013, Matshes and his lawyers asked that the findings of the review panel be set aside. At first, Alberta Justice vigorously defended its process and the findings of the report. Officials with the ministry said they were concerned about possible miscarriages of justice and the impact on murder cases.

Then in November 2013, Alberta Justice conceded in court that Matshes was not properly consulted. Both parties agreed to set aside the expert panel report. A judge formally approved the agreement and issued an “order to quash.”

At the same time, Alberta Justice told the court that it was “integral” that they continue their probe of Matshes’s work.

“The minister also asserts that the administration of justice demands a new external review panel be conducted,” said Marta Burns, then senior legal counsel and now a superior court judge with Alberta’s Court of Queen’s Bench.

In an email, head Crown prosecutor Eric Tolppanen said that because of the decision to “quash” the report, the findings are therefore “inconsequential.”

Matshes is now suing Alberta Justice, his former boss in the medical examiner’s office and the expert panel members for $30 million for defamation.

The Fifth Estate obtained the expert review reports and other related documents from two court actions initiated by Matshes against Alberta Justice.

‘Significant problem’

The Fifth Estate asked forensic pathologist Dr. John Butt for his opinion of review panel findings and related court documents.

“What this suggests to me is that there is a significant problem with the work that was done by Dr. Matshes,” said Butt, who has helped develop medical examiner legislation across Canada. “My understanding now is that the justice department swept this whole thing under the rug.”

Some of the most senior members of Alberta Justice, including the then-ministers, were involved with and co-ordinated the review of potential miscarriages of justice relating to those autopsies.

The review of Matshes’s work was directly under the purview of Greg Lepp, now a provincial court judge, then head of the Alberta Crown Prosecution Service.

“We have a constitutional obligation to disclose anything that affects the case[s] to defence counsel,” Lepp said in sworn court testimony in 2013. “And we also have an obligation as prosecution service to consider this situation and determine what steps, if any, we’re going to take in relation to these cases.”

Reached at his office in Edmonton’s provincial court, Lepp said he could not discuss whether disclosure 

Why would you just shuffle the paperwork deep down and, like, destroy someone’s life? ​​​- Shelby Herchak

Living with the consequences

While the charge goes back almost a decade, Herchak said she is still living with the consequences of a miscarriage of justice.

“Why would you just shuffle the paperwork deep down and, like, destroy someone’s life?” Herchak said. “That’s my life, right there, that could have changed. But instead, I have this to deal with.”

Cory Wilson is a Calgary criminal lawyer serving clients in all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.