Alan N. Young In The News

Constitutional challenge seeks lifetime preservation of evidence


FEATURED: The Globe and Mail| WRITTEN BY: KIRK MAKIN| April 22, 2012

Constitutional challenge seeks lifetime preservation of evidence

Amina Chaudhary is photographed during an interview at the Grand Valley Instituition for Women in Kitchener, Ont. onSept 24 2010. Chaudhary, then known as Sarabjit Minhas, was found guilty of first-degree murder in the death of 8-year-old Rajesh Gupta but she continues to claim her innocence and is believed to have knowledge of the killer.
(Fred Lum/The Globe and Mail/Fred Lum/The Globe and Mail)

Twenty-six years after being convicted in the revenge slaying of a nine-year-old boy, a Toronto woman is mounting a constitutional challenge that focuses on lost evidence in her case.

Lawyers for Amina Chaudhary, who is still serving a life sentence for the murder of Rajesh Gupta, intend to argue at a hearing Monday that autopsy photographs apparently lost after her trial have deprived Ms. Chaudhary of a chance to overturn her conviction.

The photos depict blunt-force injuries to the victim’s skull and could potentially have shed important light on whether he had been knocked unconscious prior to his death. Ms. Chaudhary maintains that had Rajesh been conscious and struggling, she would have been incapable of abducting him.

Rajesh was strangled to death on Feb. 3, 1982. The photos were alluded to at the trial by forensic pathologist Charles Smith, but not entered into evidence. Dr. Smith has since been discredited in relation to nearly two dozen homicide cases where he lost evidence or reached unwarranted conclusions.

Lawyers for the Innocence Project, which represents Ms. Chaudhary, are gunning for considerably more than a new trial. They seek to enshrine a constitutional right to have physical evidence retained for the lifetime of an offender so that it can be scrutinized and re-tested.

Alan Young, a York University law professor who succeeded recently in a bid to strike down key provisions of the prostitution laws, maintains that innumerable innocent people could be in prison because the Crown did not hand over physical evidence that might clear their names.

With the 30th anniversary of the Charter of Rights having just taken place last week, Prof. Young says it is a perfect time for the courts to extend its protections to the wrongly convicted.

“To date, the Charter has not had any noticeable impact on improving legal protection of the wrongfully convicted,” Prof. Young said in an interview. “Although courts have now recognized the sobering reality that wrongful convictions occur with some regularity, the process for correcting these mistakes has not been modified, improved or overhauled by the courts to comply with the demands of the Charter.”

The Crown maintains that it has searched diligently for the autopsy photos in spite of the fact that there is no reasonable possibility they could aid Ms. Chaudhary in her attempt to be exonerated.

Ontario prosecutors Robert Charney, Frank Au and Sara Weinrib also argued in a written brief that the photographic evidence would be irrelevant to Ms. Chaudhary’s case. They refused to concede that Ms. Chaudhary would have lacked the strength to subdue Rajesh prior to killing him, and they point out that the defence at trial did not even consider the photos important enough to seek from Dr. Smith.

In its brief, the Crown also warns against extending unwarranted rights to criminals who have been properly convicted and contends that police procedures for retaining evidence varied from place to place in 1984 and have since been replaced by new procedures.

Prof. Young and co-counsel Vincent Genova argue that their proposal for a constitutional right to post-conviction evidence would not create an unmanageable situation for the courts.

“In fact, it serves to streamline and rationalize the post-conviction process by requiring lifetime preservation subject to a court order of destruction,” they said in a written brief. “In this way, government can effectively manage its preservation obligation by obtaining court orders whenever it is clear that the offender is not going to challenge the validity of his or her conviction in the future.”

The defence states that the Innocence Project has been compelled to abandon eight promising wrongful conviction files in recent years because police had lost evidence such as hair, notebooks and fingernail scrapings.