Supreme Court of Canada says babysitter must be acquitted in BC toddler's death

An acquittal is the appropriate outcome for a British Columbia woman whose conviction in the drowning death of a toddler was set aside two years ago, the Supreme Court of Canada has ruled.

Tammy Bouvette was charged with second-degree murder but pleaded guilty to the lesser charge of criminal negligence causing the bathtub drowning death of a 19-month-old girl she had been babysitting in 2011 in Cranbrook, B.C.

In April 2023, the B.C. Court of Appeal found the Crown had failed to disclose key evidence to Bouvette's lawyers, depriving her of the opportunity to make an informed decision about how to plead.

The Court of Appeal called the original conviction "the product of a miscarriage of justice" because the evidence and circumstances established a reasonable possibility that Bouvette would not have pleaded guilty to criminal negligence causing death if full disclosure had been made.

The Appeal Court ordered a judicial stay of proceedings, permanently halting the case without determining guilt or innocence.

Bouvette then asked the Supreme Court for an acquittal — a declaration of being found not guilty.

The Crown agreed that she should be acquitted.

In its decision Friday, the Supreme Court unanimously said an acquittal is the appropriate remedy in the case and provided two sets of reasons for reaching the conclusion.

Under section 686(2) of the Criminal Code, a conviction is quashed when an appeal has been allowed due to a miscarriage of justice.

The appeal court then looks at the appropriate remedy: an acquittal, a new trial or a judicial stay.

Writing for the Supreme Court majority, Justice Nicholas Kasirer said Bouvette should be acquitted immediately on the grounds that the Crown seeks an acquittal and has expressly stated that it would call no evidence at a new trial.

Rather than forcing the parties to go through pro forma proceedings to achieve this result, or standing in the way of it by entering a judicial stay, the just outcome is for the acquittal to be entered now — even though there is evidence that could lead a reasonable jury, properly instructed, to convict Bouvette at a new trial, Kasirer said.

"Consequently, Ms. Bouvette must be acquitted by the Court without further delay or any possible distress associated with sending the matter back to the trial court," he wrote.