Court dismisses push to preserve evidence
TORONTO - A convicted child-killer's push to have evidence in cases carrying a life sentence preserved for the rest of the offender's life has been denied.
The Ontario Appeal Court has dismissed an appeal filed by the Innocence Project on behalf of Amina Chaudhary, who was found guilty in 1984 of killing her lover's eight-year-old nephew.
Chhaudary continues to claim her innocence and has asked the federal government for a ministerial review of her case.
Her lawyers initially argued autopsy photographs that could help clear her name had disappeared due to inconsistent preservation rules.
At an appeal hearing last month, however, lawyer Alan Young focused instead on the potential risk to the rest of his client's file, including samples of hair and soil.
But the three-judge panel upheld an earlier ruling in the charter challenge that found Chaudhary's charter rights hadn't been breached because she hadn't suffered from the loss.
During the appeal hearing, Young said he was seeking a general declaration on the need to preserve evidence until the offender dies or consents to its destruction.
He argued it was needed because other evidence could go missing, which could undermine Chaudhary's ministerial review.
In its decision, the appeal court dismissed the argument, saying the original case made no mention of any materials aside from the autopsy photos.
"To the extent that there is any correspondence in the record that deals with the balance of the evidence from the investigation and the trial, the response from the Crown is that they have two boxes. There is no suggestion that that evidence will not be preserved for this ongoing matter," the decision reads.
The panel did agree the issue of evidence preservation after conviction should be examined, but found it couldn't be done through Chaudhary's case.
Her case began over 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.
Chaudhary is currently out on day parole in Hamilton.