Case information

Charter of Rights — Criminal law — Evidence — Evidence not preserved or not collected — Whether non-preservation or loss of evidence infringed right to make full answer and defence — Whether appropriate remedy was stay of proceedings — Whether instruction to jury would have sufficed to remedy prejudice.

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The applicant, Mr. Delisle, was convicted of the first degree murder of his spouse, who had died from a gunshot wound to the head. The trajectory of the bullet in the victim’s brain was highly relevant to the trial and to the competing theories that the victim had been murdered or, in the defence’s opinion, had died from a self inflicted gunshot wound. After Mr. Delisle exhausted his appeal rights, he applied for a review under Part XXI.1 of the Criminal Code. When the application was reviewed, deficiencies were discovered in the work of the pathologist responsible for the autopsy. The pathologist, and therefore the Crown, had neglected or failed to fulfil the duty to collect, document and preserve the relevant evidence. These deficiencies were alleged to be relevant to the trial, particularly because they related to the possibility of determining the trajectory of the bullet in the victim’s brain. The Minister of Justice ordered a new trial.

Mr. Delisle applied for a stay of proceedings. The trial judge found that the Crown was guilty of unacceptable negligence that had caused irreparable prejudice to Mr. Delisle’s right to make full answer and defence. The judge therefore stayed the proceedings. On appeal, the Quebec Court of Appeal stated that the Crown’s negligence was unacceptable and prejudicial to Mr. Delisle, but also that lesser remedies should have been considered. The Court of Appeal set aside the stay of proceedings and ordered that the matter be referred back to the Superior Court.