A public inquiry should be held to examine Quebec’s forensic laboratory following the decision by Quebec Superior Court to grant a stay in legal proceedings against former Quebec Court of Appeal Justice Jacques Delisle, according to a founding director of Innocence Canada, a non-profit organization that resolves wrongful-conviction cases.
“The mistakes in this case and their attitude to the mistakes in this case demonstrates that there are very serious systemic problems in the laboratory,” said James Lockyer, who took on Delisle as a client in 2014 before passing on the baton to Quebec City criminal lawyers Jacques Larochelle and Maxime Roy for the Superior Court proceedings. “There is every reason to believe that there are other miscarriages of justice as a result from their work.”
Delisle, who was convicted of first-degree murder in the death of his 71-year old wife Nicole Rainville in 2012 and sentenced to life in prison with no chance of parole for 25 years, has always maintained his innocence, claiming that his wife died by suicide. Rainville was found dead in the couple’s Quebec City condominium on November 12, 2009. She was slumped on a sitting room sofa and had sustained a bullet wound to her left temple.
Delisle’s appeal before the Quebec Court of Appeal was dismissed in 2013 and the Supreme Court of Canada refused to hear his case. A 2015 joint CBC Fifth Estate – Radio-Canada investigation revealed that there were bullet fragments in Rainville’s skull that were never recorded in the autopsy.
In April 2021, after a six-year investigation that reviewed evidence that was not before the courts at the time of Delisle’s trial or appeal, federal Justice Minister David Lametti exceptionally ordered a new trial after he determined there was a “reasonable basis to conclude that a miscarriage of justice likely occurred.” Section 696.1 of the Criminal Code provides that a person who has been convicted of an offence and who has exhausted all rights of appeal may apply to the Minister of Justice for a review of his conviction.
But Quebec Superior Court Justice Jean-François Émond held in a 99-page ruling that “society has no interest in a trial that will prove to be inexorably unfair” due to the “unacceptable negligence” by the pathologist who performed the original autopsy and whose conclusions were used to incriminate Delisle. Justice Émond castigated pathologist André Bourgault for failing to collect, document, and photograph samples of Rainville’s brain and the angle of the entry of the bullet, given that the majority of the evidence in the case essentially centred on ballistics analysis. These blunders deprived Delisle of “highly relevant evidence” in preparation for his second trial, and are the result of “unacceptable negligence” on the part of the State, undermining his right to a full and complete defence protected under s. 7 of the Charter of Rights and Freedoms, held Justice Émond in R. c. Delisle, 2022 QCCS 1160. “Society’s interest in a final judgment on the merits and the process of finding the truth cannot prevail if the fairness of the trial is irreparably compromised by the fault of the State,” concluded Justice Émond after applying the three-part test in R. v. O’Connor, [1995] 4 S.C.R. 411 and R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.
“Quebec isn’t some unique jurisdiction and that takes us to the point that wrongful convictions are not rare,” said Lockyer, a partner in the Toronto office of Lockyer Zaduk Zeeh and a founding director of Innocence Canada (formerly known as the Association in Defence of the Wrongly Convicted).
“Often when they are caused, they are the result of both bad science and bad scientists, and our courts unfortunately too often rely on bad science. It’s called the aura of reliability that they present that deceives.”
According to veteran Montreal criminal lawyer Jean-Claude Hébert, the Superior Court decision “highlights the prosecution’s obligation” to preserve evidence and documentation from expert witnesses such as pathologists. In fact, adds Hébert, the prosecution has a duty to monitor state agencies, such as scientific laboratories who are accountable to the prosecution. When evidence is unavailable or missing that cannot be reasonably explained, there is a real risk that a court may find the prosecution acted with “unacceptable negligence,” in which the case the accused person’s right to make full answer and defence is infringed, as was the case with Delisle, added Hebert.
“Justice Émond concluded that, faced with a failure to preserve relevant scientific evidence, the defence need only show a ‘realistic possibility’ of an infringement of its fundamental right to prepare and present a full answer and defence,” noted Hébert. “In Delisle, Justice Émond relied on the evidence submitted to the Minister of Justice: seven pathologists had confirmed the relevance of the missing scientific evidence.”
Lockyer, while commending federal Justice Minister Lametti for “making the right decision” by ordering a new trial, is hoping that the Delisle case will spur the federal government to follow in the footsteps of the United Kingdom and establish a Criminal Cases Review Commission (CCRC). The CCRC has received more than 28,000 applications since April 1997, leading to 769 appeals being heard by the courts. Of the 769 appeals, 538 appeals were allowed and 217 were dismissed. Moreover there are currently 621 cases under review.
“Miscarriages of justice are not rare,” said Lockyer. “The problem in Canada is finding them. We have a system that does not work well for uncovering wrongful convictions. The ministerial process is not a good process at all. In the last forty plus years, the Minister has referred a total of 32 cases back to the courts compared to 769 in the UK. That tells you the difference between the two systems. Fortunately, Mr. Delisle was one of those 32.”
