On Friday, after nine years in detention for the murder of his wife, ex-judge Jacques Delisle will be in court again, this time to request his release pending a second trial.
On Wednesday, for only the seventh time in Canadian judicial history, the federal justice minister ordered a new trial for a convict, under his extraordinary review powers to correct miscarriages of justice.
Lawyers and the 86-year-old’s family hope the “new evidence” will convince the prosecution to drop a second trial. But nothing is less certain.
The former judge of the Quebec Court of Appeal, a magistrate for 23 years, was convicted of premeditated murder in 2012 by a jury in Quebec City, after refusing to testify in his defense. He then failed in all his attempts to overturn the verdict, first to the Quebec Court of Appeal, then to the Supreme Court, which did not even want to hear the case.
When all appeals are exhausted, a convicted person can still appeal, as a last resort, to the Minister of Justice, who retains the power to have a case reconsidered when it has all the appearances of a miscarriage of justice.
The Criminal Conviction Review Group reviews applications – between 10 and 50 per year. Most are rejected. Those that raise serious questions are referred to a special adviser, who since 2018 has been the former Supreme Court justice and renowned former Montreal defense lawyer Morris Fish.
When Judge Delisle was sentenced for good at the end of 2013, he appealed to Mr.e James Lockyer, a Toronto lawyer who is sort of the pope of miscarriage of justice in Canada. Me Lockyer has been involved in “more than 20 cases” of convictions of innocent people, including the famous cases of Guy Paul Morin, Steven Truscott, Robert Baltovich.
Since the conviction of Jacques Delisle, he told me in an interview on Wednesday evening, he has produced 10 different expert reports to convince the various ministers of justice to reopen the case.
“One from the Director of Forensic Expertise in Ontario, two former directors from Manitoba, one from Nova Scotia, another from Ottawa, from London (Ontario) also, another from a neuropathologist from London, and three ballistics experts from Ontario and Saskatchewan. “
What did Minister David Lametti rely on to order a new trial?
“I don’t know it myself, the whole process is confidential and covered by attorney-client privilege,” says Mr.e Lockyer.
Technically, the Review Panel, if it deems the request to be serious, requests a detailed report from its special adviser. Morris Fish, however, sat with Justice Delisle on the Quebec Court of Appeal; the case was therefore entrusted to retired Ontario judge Paul Bélanger.
“I don’t know what he concluded. All I know is that my last letter to the minister was in November 2019, and it is 161 pages long. I haven’t heard from it until today [mercredi]. “
On November 12, 2009, Nicole Rainville was found dead by her husband in their apartment in the Upper Town of Quebec. The 71-year-old woman, half paralyzed from a stroke, appears to have committed suicide with a bullet to the head. The case is closed quickly, at least officially. But the woman, depressed according to several accounts, left no note. Her husband’s unregistered pistol was found near her. How could she take possession of it? Experts were also intrigued by the presence of a black spot on the palm of the victim’s left hand – the only one she had use of.
Police experts concluded a defense plague: Mme Rainville would have put his hand against the pistol pointed at his head.
Then, the police discovered that the ex-judge had an extramarital affair with a woman to whom he would have promised that he was going to live with her.
Concussion in the Quebec judiciary the following year: murder charges were filed against the eminent newly retired judge. The lawyer had the reputation of being haughty, rigorous, brittle. But murderer?
Ballistic expertise, the suspect’s lies to the police about his whereabouts on the day of the tragedy (he first said he left the scene after a quarrel, then said he provided the weapon, telling his wife to do what she wanted) and the apparent motive of the crime finally convinced the DPCP to lay murder charges against a former judge, a first in Canada.
Judge Delisle had retained the services of Quebec’s most flamboyant lawyer, Jacques Larochelle. To everyone’s surprise, the accused chose not to testify in his defense. “The biggest mistake of my life,” he said later. He explained to journalist Alain Gravel that it was under pressure from his family that he had chosen not to testify.
Me Larochelle, for his part, believed that the expert evidence “scientifically” excluded the murder. The guilty verdict was the biggest shock and surprise of his career, he said.
For the defense, it all hinges on an “error” by the forensic pathologist about the angle from which the shot was fired.
For the prosecution, the bullet entered at an angle of 30 degrees (top to bottom, front to back, indicating that the weapon was held by the assassin standing in front of the victim). This angle excludes the self-inflicted gesture. For the defense, on the contrary, the wound shows a “perfectly round” hole, which suggests an angle of 90 degrees, perfectly compatible with a suicidal gesture.
In an interview on Wednesday evening, Me Lockyer summed up all 10 “new” expertises converging on a single conclusion: a 90 degree shot, but followed by a ricochet of the projectile inside the skull which would have deceived the pathologist.
As you can imagine, the requirements for obtaining a review of a conviction after a final appeal are extremely high. Is it really “new evidence” to provide additional expertise? After all, these experts were available at the time of the trial. It’s not like DNA evidence or an unknown witness popping up out of nowhere. Is it just that Me Larochelle did not find the experts at the right time?
“That would be an unfair comment, Me Larochelle made a very good defense and his expert [français, Vassili Swistounoff] was brilliant and was unfairly ridiculed, ”says Me Lockyer.
Indeed, in addition to the Quebec expert Gilbert Gravel, the Crown had called to the bar the boss of the Marseille judicial police laboratory, who had not only contradicted Swistounoff, but also said to have refused his candidacy as an employee.
“Don’t you think it was an adult for a former judge not to testify?
“That’s a pretty big factor, but what wins is expert evidence,” said James Lockyer.
Of all the cases of potential miscarriage of justice presented by Mr.e Lockyer, this one is totally out of the ordinary. His clients are often marginalized, penniless or minority people. Jacques Delisle, on the contrary, represents privilege itself, a sort of judicial aristocrat. He knows all the workings of the system, has had the means to hire all the experts possible, the best lawyers.
“Sometimes I just believed, in a strange way, that it had harmed him rather than helped him. As if some were happy to see him fall or wouldn’t have wanted to appear to favor him, but I don’t know. “
The huge news of a new trial order causes something of a cataclysm. The two main lawyers for the prosecution were appointed judges themselves. This news is a huge shock to them.
Meanwhile, former colleagues of Justice Delisle on the Court of Appeal, now in their 80s, have always believed that Justice Delisle, if he was not transparent with the police, would “never have been able” to kill his wife, whom he took care of throughout her illness.
Nevertheless, since his conviction, the judicial machine has rejected all attempts by Jacques Delisle to have his conviction annulled, or even to obtain provisional release.
The children of the Delisle-Rainville couple have always supported the former judge.
Wednesday evening, James Lockyer said he was hopeful of obtaining the release of his client on Friday, when he will appear at the Quebec City courthouse with Jacques Larochelle.
“I’m not a judge, but I don’t take cases lightly,” he says, noting that except in two cases where DNA evidence has confirmed previous convictions, he has won all of his review cases.
“The Minister of Justice, if he accepts a request for review, has two options: refer the case to the Court of Appeal, which will decide what to do, or order a new trial, which is much rarer. “
I certainly hope the crown will decide not to have a new trial. My client has already spent nine years in the penitentiary for a crime he did not commit.
Me James lockyer
It may also be that the Minister did not want to submit the case to the court, which had already unanimously rejected the former judge’s case.
But in any case, what impression would a simple judgment of the judicial process leave against a former magistrate, after a review by the minister, based on documents which are not yet public?
There are many in the system to believe hard as iron, on the contrary, in the guilt of Jacques Delisle. His version of events, often strange, misleading at times by his own admission, has evolved over time.
And always this silence at his trial …
While waiting to see the content of these 10 expertises, it is difficult to believe that it will be able to save a recovery in due form.