Chaudhary case prompts push to preserve evidence
Ontario's top court ruled that a judge who approved extradition was wrong to accept evidence that pointed to Marco (Mark) Viscomi as the perpetrator.
The Canadian Press
Published Wednesday, September 18, 2013 6:30AM EDT
TORONTO -- Lawyers for a convicted child-killer are asking the Ontario Appeal Court to require that all evidence in cases carrying a life sentence be preserved for the rest of the offender's life.
The Innocence Project at the Osgoode Hall law school in Toronto filed the charter challenge on behalf of Amina Chaudhary, who was found guilty in 1984 of killing her lover's eight-year-old nephew.
Chaudhary, who is currently out on day parole, continues to claim innocence despite losing an appeal and an application to the Supreme Court of Canada.
She has asked the federal government for a ministerial review of her case.
Her lawyers say key evidence that could help clear her name has disappeared due to what they call "arbitrary and inconsistent" preservation rules.
While nothing can be done to recover the missing photographs, the lawyers say they want to protect other people's ability to properly challenge a wrongful conviction.
"Post-conviction preservation is essential for the prevention of miscarriages of justice," they argue in court documents.
"In virtually all cases involving wrongful convictions, a critical component on the path to exoneration was the ability of the accused to gain access to preserved evidence for purposes of retesting or to provide investigative leads," they write.
"Without a constitutional duty to preserve for the lifetime of an offender, there will always remain a distinct possibility that an innocent person will be thwarted in his or her genuine attempts to seek exoneration."
The Appeal Court is hearing the case Wednesday.
A Superior Court judge last year dismissed their request to have the lifelong preservation of evidence declared a charter right, saying Chaudhary had not suffered from the loss.
In his ruling, Justice Michael Dambrot also said such a move would grant convicted criminals greater protection than those still before the courts.
In those cases, it isn't considered a charter violation so long as the Crown can prove the evidence wasn't lost or destroyed due to negligence.
The Innocence Project wants the Appeal Court to throw out the ruling and issue its own declaration requiring that evidence be safeguarded until the offender dies or gives permission to have it destroyed.
Authorities could also seek a court order permitting them to dispose of evidence.
At issue in Chaudhary's case are autopsy photographs showing injuries to the young victim's head.
During her trial, the now-disgraced forensic child pathologist Charles Smith testified the photos showed the boy may have been knocked out, allowing Chaudhary to strangle him despite an injury that kept her from using her left hand.
Smith, once considered one of the foremost experts in his field, was later found to have wildly exaggerated his expertise. His testimony led to several wrongful convictions.
The photos were not made exhibits in the trial and the Crown has said they cannot be found, the Innocence Project said.
The coroner's office has twice reviewed the autopsy results without them.
The Crown has argued that since then, new rules have been put in place that force Toronto authorities to keep autopsy photos and no further regulations are required.