Canada

FREE AT LAST

DEBORAH NOBES July 9 2001
Canada

FREE AT LAST

DEBORAH NOBES July 9 2001

FREE AT LAST

DEBORAH NOBES

The heat in the tiny upstairs room hits like something solid, wrapping around limbs and sucking air from lungs. The room is crowded with furniture, an old refrigerator, stacks of boxes and a single bed neatly made with a ratty yellow spread. Despite the heat, Felix Michaud spends hours here, sitting in a low chair next to the window with the shade drawn, smoking Export “A” cigarettes. In some ways, he feels as trapped as he did during the years he lived behind bars for a murder he always insisted he didn’t commit. He was finally released from prison on May 29 when a Court of Queen’s Bench justice threw out the Crown’s main evidence against him. “I know they should investigate what happened,’’ Michaud says in a thick French accent that reveals his northern New Brunswick roots. “Why did they do that to me? Why? I have nothing. My room is no larger than the cell I was living in for the last nine years. It's hot as hell. 1 just sit in there and boil.

After having his face plastered on the front pages of local newspapers and on TV, Michaud, who will soon turn 36, is a celebrity in his Moncton, N.B., rooming house. But he hates the place and has plans to move out. He has found work on a paving crew for the summer, but hopes to get a job driving longhaul trucks and move to the country where he can hunt and fish and begin his life again. “I want to settle down. Find a woman, have kids if she wants to,” he savs. “Normal

stuff. I have a lot of love to give. That’s all I want to do.”

Things began to unravel for Michaud in July, 1992. He had been living with his common-law wife, Suzanne Oakes, and their four-year-old daughter, Cindy, in the tiny village of Claire, N.B. The young family lived at the edge of poverty, their welfare cheques supplemented by under-the-table work driving gravel trucks and payments for smuggling tobacco across the Saint John River from Maine. An elderly cousin of Oakes’s, Rose Gagné, helped when she could, buying clothes and gifts for Cindy. Until Gagnés death in a house fire on Dec. 4, 1991, Michaud returned her favours, picking up her prescriptions and doing yard work.

After a brief investigation, New Brunswick RCMP regarded Gagnés death as an accident. But then a local small-time criminal, Marco Albert, began telling friends the 73-year-old woman was raped and murdered and the fire deliberately set to hide the evidence. Police renewed their investigation—with disturbing conclusions. An arson investigator found the fire had indeed been intentionally set. And a pathologist who examined the exhumed body found Gagné had died before the house burned, but could not pinpoint her cause of death or determine whether she had, in fact, been raped.

Police arrested Albert, who gave three different statements before setding on a version that blamed an accomplice for the murder. In exchange for a promise to testify, Albert pleaded guilty to robbery and was sentenced to just two years in prison. He told police he and Michaud robbed the house together, but Michaud was responsible for the rest. Police turned up nothing else to connect Michaud to the crime, but nearly seven months to the day after Gagnés death, he was charged with first-degree murder.

Since then, Michaud has worn a hard road through New Brunswick’s judicial system. After Albert testified against him in a 1993 trial, Michaud was convicted of first-degree murder and sentenced to life in prison without possibility of parole. But upon appeal, the New Brunswick Court of Appeal condemned the trial as unfair, ruling that the Crown prosecutor, Jocelyne MoreauBerubé, made inflammatory and misleading remarks to the jury when she concluded Michaud was capable of murder because he cheated welfare and smuggled tobacco. The Supreme Court of Canada upheld the lower court’s decision to order a new trial. Weeks before it began in September, 1996, Albert shot and killed himself in the basement of his parents’ home. Still, Court of Queens Bench Justice Alexandre Deschênes allowed the trial to go ahead, and transcripts of Albert’s testimony from the first trial were read to the jury. Michaud was convicted yet again and sentenced to life in prison.

Because he denied any guilt, he wasn’t eligible to take

But why, asks Felix Michaud, did he spend nine years in jail for a crime he didn’t commit?

part in any prison rehabilitation programs, including therapy. Instead, Michaud worked as a prison mechanic, clearing snow from the yards in winter, planting flowers and mowing grass in the summer. He bounced from federal institutions in New Brunswick and Nova Scotia to provincial remand centres, always trying to maintain hope he would be believed. But the wait took its toll, as he suffered bouts of anxiety and depression. “He lost all gumption to fight,” says one of his lawyers, Gilles Lemieux. “But even then, he wouldn’t admit. He’s always been driven by the belief that something, somewhere would vindicate him.”

Finally, in February, 2000, the New Brunswick Court of Appeal quashed the second conviction and ordered a new trial based on a mistake in the lower court judge’s charge to the jury. Before the third trial was to begin, Michaud’s defence team requested a new disclosure file from the Crown. Instead of the 250 pages of evidence that had been handed over in the two previous trials, the prosecution wheeled in a dolly bearing several boxes containing 2,500 pages of wiretap transcripts and police notes. They contained crucial evidence that, had it been given to his first lawyers, might have resulted in Michaud being acquitted. This included transcripts of two separate conversations in which Albert said Michaud was not a person “who would think of doing something like that.” The stacks also included a curious note written by the chief investigating officer, Bathurst RCMP Corp. Roland Sauvageau, documenting a conversation between himself and Moreau-Berubé. The note, from November, 1992, said the wiretap transcripts should not be used at trial. “She is of the opinion that it would be useless to utilize any of it, being mostly beneficial to the accused,” Sauvageau wrote.

That convinced Justice Roger McIntyre the prosecution was “grossly negligent” when it failed to disclose the transcripts to the defence in the first two trials, and he ordered the exclusion of all of Albert’s testimony at the pending trial. The Crown admitted it had no case and stayed the murder charge against Michaud (the Crown has a year to reinstate the charge). He walked out of jail the same day with a cheque for $47—earnings from his inmate account.

Michaud is now coping with life on the outside. His lawyers are pushing for compensation to atone for his years behind bars. But Michaud isn’t sure any amount of money would make up for his loss. His wife has moved on. She has full custody of his daughter, who is now a teenager. Michaud himself is more fearful. “You know how when you go to the swimming pool in the summertime and you stick your toe in to see if you can swim?” says Lemieux. “Felix is sticking his toe into society, because he’s lost his sense about what to do.” GS