Vauclair, Cournoyer, Lavallée

Application to dismiss appeal. Dismissed. Appeal from a judgment of the Superior Court granting an application for a stay of proceedings. Allowed; the stay of proceedings is set aside, and the case is referred back to the Superior Court for the continuation of the proceedings.

On June 14, 2012, the respondent was convicted on a count of first degree murder of his wife, who died from a gunshot wound to the head. The respondent exhausted all his rights to appeal but was unsuccessful. In 2015, he filed an application for Ministerial review under Part XXI.1 (ss. 696.1 to 696.6) of the Criminal Code (R.S.C. 1985, c. C-46). After a review by experts, the Minister of Justice of Canada, convinced that there was a reasonable basis to conclude that a miscarriage of justice had likely occurred, ordered a retrial.

On April 8, 2022, the Superior Court ordered a stay of proceedings, the trial judge finding that the State had failed in its duty to preserve and document the relevant evidence to determine the projectile’s path in the victim’s brain. The “lost evidence” originated from the autopsy. During his examination of the brain, the pathologist did not preserve the slices he made, and they were not documented or photographed. Only one of the samples showed the projectile’s path, but the pathologist had not properly localized it. The judge concluded that this failure deprived the respondent of his right to make full answer and defence and to a fair trial.

Cases where such a remedy is possible, especially at that stage of the proceedings, are rare. In this case, the judge did not err in finding that the lost evidence was relevant and important and that its loss was the result of unacceptable negligence by the State. Nor did he err in concluding that the destruction of this evidence had compromised the respondent’s right to make full answer and defence. However, he did err as to the determinative nature of the lost evidence, a result that is irreconcilable with his own conclusion on the scope of the expert reports, and in concluding that the harm was irreparable. Indeed, the impossibility of showing with certainty the projectile’s path cannot, in itself, constitute an irremediable infringement to the right to make full answer and defence. The right to a stay of proceedings requires a much more nuanced approach to the impact of the lost evidence. The case law has established that a stay of proceedings is not the appropriate remedy if the accused may nevertheless properly present the facts in support of their defence.

In spite of the failings of the autopsy report, the experts have shown that it is possible to present probative evidence on the subject of the projectile’s path that contradicts the conclusions of the pathologist who performed the initial autopsy. Thus, in the context of the expert evidence, the respondent has not been deprived of presenting contradictory evidence as to the path of the projectile that is capable of raising raise a reasonable doubt.

The judge also erred in concluding that there was no other way to remedy the harm but by ordering a stay of proceedings. Harm that is not irreparable cannot constitute one of the rare situations considered to be the clearest of cases justifying this remedy. The judge failed to consider the possibility of giving the jury instructions to indicate the opportunity that was denied the respondent as a result of the lost evidence. In this case, the Court is of the view that such instructions could constitute a fair and reasonable remedy.

Text of the decision: http://citoyens.soquij.qc.ca