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Update
on wrongful convictions in Canada, October, 2004
 January 25, 2005: The
Federal government released the first
national examination of the reasons for so many wrongful convictions
in Canada.
This should be required reading for every prosecutor, cop and
criminal defence lawyer in the country. News reports
Felix Michaud
After two murder convictions
and 9 years in jail, Michaud walks free
New Brunswick man ready
to 'start life over' after Crown's case collapses
Philip Lee, The
Ottawa Citizen, June 2, 2001
FREDERICTON, N.B. - Felix Michaud's
dark brown eyes brimmed with tears yesterday as he struggled
to find words to describe his torturous journey through the criminal
justice system.
Three days ago, Mr. Michaud,
35, walked out of a holding cell in a northern New Brunswick
courthouse a free man after spending almost nine years in prison
for a murder he insists he did not commit.
The murder charge was stayed
by prosecutors after defence lawyers discovered that the Crown
had failed to disclose evidence that casts doubt on the testimony
of the man who put Mr. Michaud behind bars.
Mr. Michaud's release is just
the latest chapter in a bizarre story that involved two trials,
two first-degree murder convictions, a trip to the Supreme Court
of Canada, the suicide of the Crown's less-than-reliable star
witness, jailhouse informants, suppressed wire tap evidence and
a dogged team of lawyers who refused to stop digging until they
uncovered the smoking gun.
Yesterday, Mr. Michaud and
his lawyers, Patrick Murchison and Ottawa-native Gilles Lemieux,
met with reporters in a conference room at the University of
New Brunswick Law School to tell the story of Canada's latest
miscarriage of justice.
"We've been over a long-hard
road, me and Felix," said Mr. Murchison, who has worked
on the case since 1992. "We don't want this to happen to
anybody else. "
Mr. Michaud, a tall, powerful
looking man, wore a white shirt and thin gold chain around his
neck as he spoke softly in English and French, telling reporters
how he is enjoying driving down roads through the woods and smelling
the forest. After he was released from prison, he stayed up all
night and watched the sun rise for the first time since the summer
of 1992.
He is a wounded man and his
losses during his time in prison, including his wife and daughter,
who is now 12, are almost too great to bear.
"It's finally over,"
Mr. Michaud said. "It was rough, always thinking, 'I'm innocent
and I'm in jail, I'm innocent and I'm in jail.' I'm happy I'm
out. I was angry when I was locked up. Now I feel relieved. The
justice system failed me twice, but this time it didn't. This
time I believe there's still justice. I want to put this thing
behind and start my life all over again."
Mr. Michaud's encounter with
the justice system began in the village of Connors beside the
St. John River in northwestern New Brunswick. There, on the evening
of Dec. 3, 1991, 73-year-old Rose Gagne died when her house burned
to the ground.
Police and fire fighters initially
concluded that the fire was an accident. Ms. Gagne's death hit
Mr. Michaud's family hard. She was Mr. Michaud's wife's second
cousin and an adopted grandmother for their young daughter.
On May 2, 1992, the RCMP took
a statement from a local man named Luc Bonenfant who told them
that a petty criminal, Marco Albert, was telling his friends
that Ms. Gagne's death was not an accident. Mr. Albert lived
next door to Felix Michaud in the village of Claire near Connors.
An arson investigator concluded that it appeared the fire had
been deliberately started. Police found that the telephone wires
to the house had been cut.
Rose Gagne's body was exhumed
and examined by a pathologist who concluded she had died before
the fire swept through the house. However, the doctor couldn't
determine the cause of her death.
Marco Albert gave three statements
to police before settling on a final version of his story. When
he was under arrest for Ms. Gagne's murder, he decided he "better
go ahead and do what I have to do," and implicated Mr. Michaud.
The charge against Mr. Albert
was reduced to robbery. He pleaded guilty and was sentenced to
two years in prison.
On July 7, 1992, RCMP investigators
charged Felix Michaud with Rose Gagne's murder. The murder charge
was based on the statement of Mr. Albert, who said that Mr. Michaud
was with him the night of the fire. He said they both robbed
Ms. Gagne, but that Mr. Michaud had raped and strangled her,
and set the fire.
In 1993, Mr. Michaud was convicted
of first-degree murder. Two years later, the conviction was overturned,
first by the New Brunswick Court of Appeal and then by the Supreme
Court of Canada because of the inflammatory courtroom tactics
of Crown prosecutor Jocelyne Moreau-Berube.
In the weeks leading up to
the second trial, Mr. Michaud's new lawyer Kim Jensen asked veteran
criminal lawyer Gilles Lemieux to join the defence team. His
job would be to cross examine the witnesses who spoke French,
most importantly Marco Albert.
On August 17, 1996, three weeks
before Mr. Michaud's second trial began, Marco Albert shot himself
in the basement of his parents' home.
At the second trial, Ms. Jensen
brought forward fresh evidence from three prison inmates who
said that Mr. Albert had told them he lied about Mr. Michaud's
involvement in the crime. Mr. Michaud was convicted a second
time, but again successfully appealed the verdict. This time,
the trial judge had made a series of errors in his address to
the jury and the appeal court sent the case back for another
trial.
As Mr. Lemieux and Mr. Murchison
prepared for the third trial, they asked the Crown for a new
disclosure on the investigation. Mr. Lemieux was concerned that
some documents may have been misplaced during the years of legal
wrangling. When the disclosure documents arrived, the lawyers
discovered they had 10 times more material than the 250 pages
that had been delivered for the first two trials.
They started digging through
the mountain of documents. Mr. Lemieux uncovered a RCMP report
dated Nov. 13, 1992, which stated that the police had reviewed
transcripts of wire tap evidence that showed "inconsistencies"
with Marco Albert's testimony.
Eventually Mr. Lemieux found
the tape of a body pack recording made by Luc Bonenfant with
Mr. Albert before Mr. Michaud was charged. Speaking in French
on the tape, Marco Albert said Mr. Michaud was innocent and not
the kind of man who would kill Ms. Gagne.
After the jury was selected
for Mr. Michaud's third trial, Mr. Lemieux and Mr. Murchison
asked the judge to exclude Mr. Albert's testimony because crucial
evidence, which would have been used during his cross examination
during the first trial, had been suppressed.
On Tuesday morning, the judge
accepted the defence motion and threw out Marco Albert's testimony.
The Crown's case collapsed.
The lawyers are now preparing
a case to seek compensation for Mr. Michaud.
There is another outstanding
question: Who killed Rose Gagne? One final cryptic piece of evidence
remains that was never presented at any of Mr. Michaud's trials.
Marco Albert wrote in his suicide note: "Forgive me for
all my sins." Were his sins the crime against Ms. Gagne?
Or did his sins involve sending an innocent man to prison? Mr.
Albert took the answers to these questions to his grave.
"The issue here isn't
his innocence or guilt, it's his ability to defend himself,"
Mr. Lemieux said yesterday. "It's more important for the
judicial system to be sure it is fair with everybody than it
is to find who is innocent or guilty. The system failed before
Felix Michaud's charges were ever laid. And that failure, that
continued failure resulted in an unfair cross examination in
his preliminary inquiry and in his first trial and went on from
there."
"The issue is live and
we will be looking at it," Mr. Lemieux said.
The
continuing career pf Jocelyn Moreau-Berube
Tuesday, March 16, 1999
Insulting judge was having a very bad day, hearing told
N.B. jurist who called Acadians dishonest was tired, lawyer says
Elena Cherney, with files from
Kate Jennison
National Post
A New Brunswick provincial
court judge who called Acadians dishonest during a sentencing
hearing last year made the inflammatory remark because she was
overtired and anxious about her mother's health, the province's
judicial council heard yesterday.
Judge Jocelyne Moreau-Berube
told her courtroom that if she polled residents of the Acadian
peninsula, she would find more dishonest than honest people,
and said she wondered if her own neighbourhood was populated
by crooks.
Anne Bertrand, Judge Moreau-Berube's
lawyer, argued the 44-year-old jurist does not deserve to be
reprimanded or sent for "rehabilitative" judicial training
for a mistake she made under duress.
"Day after day, sitting
on the bench, is not easy," said Ms. Bertrand. "It's
not easy to be a judge. That's why it's easy for someone to make
a mistake."
On Feb. 15, 1998, Judge Moreau-Berube
"had received bad news about her mother," said Ms.
Bertrand. "She thought she might have cancer. And three
people in her family had died of cancer. Died of cancer."
That night, Judge Moreau-Berube
was so anxious "she couldn't sleep. At 6:30 a.m., she realized
she had 50 cases. She decided to go on with her day."
She made her way to the Tracadie-Sheila
courthouse, and set to work.
At 5 p.m., after a full day,
a break-and-enter sentencing came before Judge Moreau-Berube,
and she was confronted with "a problem that plagues the
peninsula" -- theft.
"By this time, it's 5:30
p.m. It's there, unfortunately, she went too far," said
Ms. Bertrand.
"But she did not mean
to say what she said."
When she went home that night,
Judge Moreau-Berube realized the mistake, and the next day tried
to rectify the situation by stating that although there is a
high rate of poverty on the peninsula, not all poor people resort
to theft, said Ms. Bertrand.
Judge Moreau-Berube apologized
in court for her comments several days after the incident.
Yesterday, she rose to speak
only briefly, and repeated that apology. "I regret what
I said, and I am sorry," she said, her voice breaking as
she sat back down. When she stood again at the end of the hearing
and reporters swarmed around her and Ms. Bertrand, Judge Moreau-Berube's
eyes were filled with tears.
Ms. Bertrand urged the judicial
council to consider how reprimanding Judge Moreau-Berube could
both undermine judicial immunity -- the right of a judge to speak
from the bench without fear of legal action -- and shake public
confidence in the bench.
Most complaints against Canadian
judges stem from comments made by judges that are not directly
pertinent to the cases they are hearing, said Ms. Bertrand. Such
comments are usually made in the heat of the moment, when a judge's
patience runs out "at moments of tension," said Ms.
Bertrand.
Judge Moreau-Berube's courtroom
comments have come under fire before.
In 1996, a murder conviction
Judge Moreau-Berube obtained while still a Crown prosecutor was
overturned in part because of inflammatory comments she made
to the jury.
The Supreme Court of Canada
ordered a new trial for Felix Michaud in the 1991 slaying of
an elderly woman because of mistakes by Justice Joseph Z. Daigle
and comments by Judge Moreau-Berube.
Judge Daigle, now chief justice
of the New Brunswick Court of Appeals, the province's highest
court, is presiding over the judicial council charged with deciding
Judge Moreau-Berube's future.
The judicial council began
looking into the case last year after receiving several complaints
about Judge Moreau-Berube's comments, and appointed a three-member
panel to investigate.
The panel's report has not
been made public, although Ms. Bertrand discussed parts of it
yesterday.
At least one member of the
investigative panel, Court of Queen's Bench Justice Thomas Riordan,
found Judge Moreau-Berube's remarks construed improper conduct,
and recommended that she be reprimanded or sent for special training
to address her behaviour.
But all three members of the
panel agreed her comments did not call her competence as a judge
into question.
Ms. Bertrand said yesterday
the 13 months of public scrutiny have not only provided all the
"rehabilitation" Judge Moreau-Berube could need, but
have made her a better judge.
"Every day she goes to
court, and she has to be careful," said Ms. Bertrand. "She
knows everyone is watching her because there is a complaint against
her. She has never said this again."
Judge Moreau-Berube has also
learned that if she is ever under enormous personal strain, rather
than staying at work all day, "she will go home. She will
not make the same mistake again."
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