Judge appointment of prosecutor at heart of Alberta autopsy scandal could taint investigation, say critics

Senior members of the Alberta legal community have raised questions about the appointment of Eric Tolppanen as a judge on the provincial court amid an ongoing investigation of his previous department.

Tolppanen, who was appointed in mid-April, had been the head of the Alberta Crown Prosecution Service, which has been the subject of a probe into how prosecutors handled a series of autopsy reports.

"I was dumbfounded when I heard [of the appointment]," said Tom Engel, a veteran Edmonton criminal defence lawyer. "I just thought it was a shocking and brazen disregard for the integrity of the administration of criminal justice, including the judicial appointment process."

An external counsel will likely look at Tolppanen's role specifically in the handling of the autopsy reports, said lawyer James Lockyer, who has won multiple wrongful conviction cases.

"When someone's conduct is the subject of an investigation, it doesn't seem a particularly appropriate time to appoint them to a judgeship," Lockyer said.

The Alberta Crown Prosecution Service came under scrutiny earlier this year after a Fifth Estate series found three people facing second-degree murder charges in western Canada said they didn't know of key evidence they could have used in their defence.

The accused, and several lawyers, said they were not given copies of new autopsy opinions that better reflected what they said happened. Instead, they took plea deals to lesser charges to avoid longer prison sentences.

Probe 'tainted,' lawyer says

Following the CBC reports, Alberta Justice Minister Doug Schweitzer ordered an investigation by external counsel to better understand what happened. 

Schweitzer also supported Tolppanen's appointment to the bench, which was formalized in mid-April.

"I don't know what they're going to do because now the investigation, I think, has been tainted," said Engel. "It harms the integrity of that investigation that [Schweitzer] ordered."

People who want to be judges in Alberta must go through a lengthy process. The judicial council in Alberta first reviews the applications to narrow down a list. Then the provincial court nominating committee interviews candidates to further fine-tune the list.

From there, "the Minister of Justice selects a candidate to fill a vacancy on the Court," according to the judicial appointment website.

In this case, cabinet finalized the official nominees through an order in council on April 14. In addition to Tolppanen, six others were appointed to the provincial court that week.

A spokesperson for provincial judges declined comment on behalf of the chief judge. She said Tolppanen has started his training in the Calgary criminal court division.

'No constraints,' investigator says

The lawyer tasked with investigating the actions of the Crown's office said in an email that "no constraints" had been placed on who he can interview or which document he can review. 

"The fact that Eric Tolppanen has been appointed to the judiciary has no effect whatsoever on my investigation or eventual report to the minister," Colin McKinnon wrote in an email.

McKinnon is a former Ontario Superior Court justice currently working as an independent arbitrator.

CBC News asked Alberta Justice for interviews with Tolppanen and Schweitzer about the appointment and how it would affect the justice ministry's response to the probe.

Spokesperson Dan Laville responded to say the ministry was "confident" the external counsel would "conduct a thorough and impartial review." He said any comment on the future report would be "speculative."

'What happens if he's not cleared?'

Before Tolppanen's appointment was finalized, Engel said the justice ministry should have considered his involvement in the review of his previous department.

"What happens if he's not cleared? What happens if he is sworn in as a judge and then the investigation finds that he was guilty of serious misconduct in terms of disclosure?" Engel said.

McKinnon has been tasked with determining if and how Alberta prosecutors disclosed the autopsy review findings to the accused and their lawyers.

He is supposed to identify if any possible miscarriages of justice took place as a result, and to recommend a remedy, if necessary.

"The failure to disclose is a serious breach of legal ethics," Engel said. "And so, if it is found that [Tolppanen] breached his duty to disclose, then that's something that the Law Society would be looking at."

Engel said he thought Tolppanen's judicial appointment should be suspended. If it isn't, he said, Schweitzer and his cabinet should recuse themselves from any of the decision-making that comes out of the probe.

'Fairly serious questions about what they did'

Edmonton defence lawyer Brian Hurley told CBC News he considers Tolppanen to be "eminently qualified" for the job.

"But I think the optics are not good," said Hurley, who represents Alberta on the Canadian Council of Criminal Defence Lawyers.

"It creates a problem with the public perception of how thorough and complete the investigation is going to be. And it creates a problem with the public's view of the justice system in general."

Justice ministry staff should "answer some fairly serious questions about what they did with that report," Hurley said.

Tolppanen previously told The Fifth Estate that he is satisfied the ministry's staff met all legal disclosure requirements. But those affected insisted they weren't provided adequate information.

Tolppanen also said he felt the autopsy review's results were "inconsequential" today because of an agreement the ministry made back in 2013.

At the time, Justice officials agreed with the original pathologist to set aside the findings, because they agreed the doctor had not been adequately consulted during the process. Their agreement was formalized before an Alberta Court of Queen's Bench justice.

At the same time, Alberta Justice said "the administration of justice demanded" a second panel be held — but that never happened. Tolppanen and others have not explained why.

The pathologist, Dr. Evan Matshes, filed a $30-million defamation lawsuit in 2014 against the Alberta government. He now runs a forensic pathology business in California.

Matshes told The Fifth Estate that he continues to stand by his work, and that he's been the victim of a "witch hunt" and "political vendettas" in multiple jurisdictions.

University of Calgary professor Asad Kiyani agreed that Tolppanen was appointed at an inopportune time. But he said his greater concern is that Alberta Justice may be missing a larger issue than who did what in the Crown's office.

"The real problem here is that there are potential wrongful convictions," he said.

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