What You Need to Know – Justice Delisle Gets Tried Three Times for the Murder of the Same Woman …. His Wife
On August 10, 2024, Mr. Justice Jacques Delisle, a retired judge of the Quebec Court of Appeal, passed away. The website of the Court of Appeal eulogized him as follows:
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“It is with great regret that we inform you of the death, at the age of 89, of retired justice Jacques Delisle. Justice Delisle was appointed to the Superior Court on July 18, 1983, and to the Court of Appeal on June 26, 1992, where he sat until his retirement on May 1, 2009. Justice Delisle consistently championed the proper use of the French language in legal drafting. He was a renowned jurist, and the quality of his decisions attested to his genuine passion for the law. On behalf of all the justices of the Court, Chief Justice Manon Savard expressed her most sincere condolences to his family and friends.”[i]
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While his career as a judge is admirable, unfortunately, it is the following judicial saga for which he will be best remembered:
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·?????? On November 12, 2009, Ms. Nicole Rainville, wife of Mr. Justice Delisle, died;
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·?????? On June 14, 2012, a jury found Mr. Justice Delisle guilty of the murder in the 1st degree of his wife. The same day he was given the minimum sentence of life imprisonment with the possibility of parole after 25 years (the “1st Trial”);[ii]
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·?????? On May 29, 2013, the Court of Appeal dismissed his appeal of his conviction (the “1st Appeal”);[iii]
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·?????? The Supreme Court of Canada, on December 12, 2013, refused to hear Justice Delisle’s appeal of the judgment dismissing his 1st Appeal.[iv] Justice Delisle commenced serving his life sentence;
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·?????? Nearly 10 years later Justice Delisle was put on trial for a second time. The trial judge stayed all proceedings against him, effectively declaring him innocent (the “2nd Trial”);[v]
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·?????? The prosecution appealed the stay of proceedings and won? (the 2nd Appeal”). As a result, Justice Delisle was ordered to stand trial a 3rd time (the “3rd Trial”);[vi] and
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·?????? Finally, at the 3rd Trial, Mr. Justice Delisle pleaded guilty to manslaughter and served 1 additional day in jail.[vii]
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The facts up to and including May 29, 2013, the date of the judgment dismissing the 1st Appeal, were best summarized by the Court of Appeal in its judgment of September 26, 2023, on the 2nd Appeal, ordering the 3rd Trial:
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“[31] [On November 12, 2009] Delisle returned home from shopping to find his wife [Ms. Nicole Rainville] lifeless. When he called 911 emergency services, and then the police on the scene, he stated that his wife had taken her own life. In fact, a projectile entry wound is visible on the left side of [her] head, providing prima facie evidence of the cause of death. A small pistol was on site, and a shell was found on the living room table. Paralyzed on the right side due to a previous stroke, [she] victim could only use her left hand.
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[32] On the scene, a crime scene technician finds it suspicious that [Ms. Rainville’s] left hand is stained black, probably by soot and gunpowder grains from the weapon. [The technician] notifies the investigators and takes the necessary precautions not to alter the condition of the hand.
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[33] From the outset of this case, suicide or homicide are the two competing explanations.
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[34] The autopsy is performed by forensic pathologist Dr André Bourgault. He focused on the trajectory of the bullet. [The] examination of the wound and skull suggested [to him] a close-range or point-blank shot. No exit wound is visible. An X-ray shows the projectile in the right posterior part of the head. The pathologist is actively investigating the trajectory of the bullet in the brain. He also wonders about the powder in the hand. He calls in a ballistics expert to help him understand. The presence of gunpowder in the hand leaves the ballistics expert doubtful, and he concludes that it cannot be suicide.
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[35] At the [1st Trial], Delisle's exclusive opportunity went unchallenged. The prosecution called the pathologist to testify on the trajectory of the projectile, a straight line from the front to the back of the head. He testified that brain tissue does not allow the trajectory to be followed perfectly, but that he could clearly see that it went from front to back.
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[36] Two ballistics experts testified that [Ms. Rainville] could not have fired the fatal shot in a way that would have left the marks found in her hand, as these presuppose that the hand was close to the muzzle of the gun.
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[37] Other pieces of evidence, all disputed, point to a suspicious death. For example, the ballistics experts add that the pistol must have been cocked using two hands; [Ms. Rainville] had the use of only one. A shell was found on the living room table. A forensic biologist suggests that, ?given the blood splatter, [Ms. Rainville’s] head was turned to the right. Finally, Delisle's behavior on the day itself is presented, as are his statements to the police, and a motive is suggested.
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[38] As highlighted in our 2013 ruling [dismissing the 1st Appeal], the angle of fire was a central piece of evidence that was fiercely contested at trial. In the judgment, the Court [of Appeal] noted that, at trial, ‘experts on both sides presented differing opinions’ and the ‘question of the angle of the shot was decisive’ because shooting at an angle ruled out the possibility of a self-inflicted shot.
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[39] The Court [of Appeal wrote] that the theory of firing at an angle of at least thirty degrees was advocated by Dr. Bourgault and adopted by ballistics experts. It also refers to the pathologist's observations of the projectile's trajectory in the brain, adding that he ‘thus concluded that the projectile had gone towards the back of the brain, from left to right and at an almost horizontal angle.’
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[40] According to the ballistics experts…, the bullet's trajectory through the brain made a perpendicular shot impossible. They also explained that the black spot on [Ms. Rainville's] hand was the result of her trying to push the barrel away with her hand.
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[41] For his part, the defense expert, ballistician Swistounoff, attempted to demonstrate that the barrel was rather perpendicular and that a deflection of the projectile had occurred inside [Ms. Rainville's] head. The self-inflicted ‘quasi-perpendicular shot left a slight opening towards the front of [her] face, making it possible for the front part of her left hand to be located there and for her to pull the trigger herself, in one of the so-called 'unconventional' positions identified by the defense expert.
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[42] In rejecting Delisle's arguments on ?[the 1st Appeal], the Court [of Appeal] wrote that the jury could believe Dr. Bourgault, the only witness who handled the brain, and reject the thesis of ballistics expert Swistounoff, testifying for the defense, who advocated a significant deflection of the projectile in the brain, a scenario rejected by another expert for the prosecution.
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[43] The jury could also reject the hypothesis of suicide. According to the Court [of Appeal], this theory was based on three aspects that the jury had to accept. The first related to the trajectory of the projectile and the angle of fire. The second, given the marks on the victim's hand, was related to the so-called ‘unconventional’ handling of the weapon. In this respect, two photographs, one reproduced by the prosecutor (left), and one taken from expert Swistounoff's report (right), illustrate the manipulation in question:
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[44] The Court [ of Appeal] described this so-called unconventional manipulation as a ‘major stumbling block,’ because ‘the unusual character proposed by the appellant [Delisle] for the holding of the pistol, [was] unheard of even for the defense expert.’
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[45] The Court [of Appeal] added the presence of a third aspect, another difficulty which, this time, required the jury to believe that Delisle ‘moved the casing when he discovered Mrs. Rainville, without which the defense's case is considerably undermined since it is incompatible with the presence of the casing on the living room table.’[viii]
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In 2015, Mr. Delisle asked the Minister of Justice of Canada (the “Minister”) to review his file to determine if his conviction likely constituted a miscarriage of justice.[ix]
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Section 696.3(3) of the Criminal Code of Canada (“C.Cr.”) stipulates that:
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“On an application under this Part, the Minister of Justice may
(a)?if the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred,
o?? (i)?direct, by order in writing, a new trial before any court that the Minister thinks proper or, in the case of a person found to be a dangerous offender or a long-term offender under Part XXIV, a new hearing under that Part [XXI.1 Application for Ministerial Review – Miscarriages of Justice], or
o?? (ii)?refer the matter at any time to the court of appeal for hearing and determination by that court as if it were an appeal by the convicted person or the person found to be a dangerous offender or a long-term offender under Part XXIV, as the case may be; or
·??????? (b)?dismiss the application.”
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In April, 2021, based on a report by a “…group of eminent specialists in forensic medicine and science…from various Canadian provinces…” the Minister ordered that Justice Delisle be retried.[x] Those specialists “…noted shortcomings in the autopsy report and the samples taken, and noted the absence of conservation of the brain, its sections and photographic documentation of the work carried out on this organ.”[xi]
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Justice Delisle’s lawyer asked the trial court to stay the 2nd Trial because the prosecution had lost evidence and, hence, “…deprived [Justice Delisle] of his right to make a full answer and defense and his right to a fair [second] trial.” The “lost evidence” in question was described as being:
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“…the victim's brain or the cuts and samples taken from it, as well as the lack of documentation relating to these aspects. These elements, useful for determining the trajectory of the projectile in the brain, were neither preserved, documented nor photographed. Only one sample of the brain, bearing a mark of the projectile's passage, has been preserved, but it has not been properly located, so that it cannot be used to determine the projectile's trajectory.”[xii]
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The trial court found that the loss of the evidence “…caused serious prejudice to [Justice Delisle] in that it deprived him of highly relevant evidence” and that such loss was due to “…unacceptable negligence.” on the part of the prosecution.[xiii] The loss of such evidence “…violated [Justice Delisle’s] right to present a full and complete defense”.[xiv] Consequently, “…the jury [in the 2nd Trial] would have had to decide not only on the basis of incomplete evidence, but also on the basis of equivalent and contradictory factual testimony.”[xv] As a result, the trial court concluded that “[n]o directive can remedy the absence of such material evidence which should and could have been easily collected, preserved and documented.”[xvi] As a result, the trial court agreed to stay of the proceedings in the second? trial.[xvii] The prosecution appealed the stay of proceedings to the Court of Appeal, hence the 2nd Appeal.[xviii]
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In its judgment on the 2nd Appeal, the Court of Appeal reiterated that the prosecution has an obligation to “…disclose all relevant evidence to the defense, whether or not it is favorable to the accused. This is a component of the accused's right to a fair trial and the right to make a full answer and defense [to the charges against the accused].”[xix] It added that the obligation applies to all participants in the investigation including evidence “…gathered by forensic laboratory scientists, when those professionals are called upon by the police to analyse evidence…”[xx] Moreover, the law presumes that any information in the prosecution’s possession is relevant to the case and must be disclosed, even if it is only of “some use” to the accused.[xxi] Indeed, the Supreme Court of Canada has gone so far as to hold that “the right to disclosure would be meaningless if [the prosecution] were not required to preserve evidence that is known to be relevant.”[xxii]
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Where evidence is lost “…the onus is on the [prosecution] to demonstrate that the State took reasonable steps to preserve the evidence. In this regard, the relevance of the lost item or information at the time of its disappearance must be taken into account. The State is not obliged to keep everything with the expectation that it will, one day, become relevant to a given case. It is easy to understand that the more relevant the element, ‘the greater degree of diligence expected [of the State] in preserving this evidence.’”[xxiii]
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The Court of Appeal concluded that the prosecution failed “…to demonstrate that the [trial court] erred when [it] concluded, based on expert evidence establishing the standards of practice for pathologists, that the State, through unacceptable negligence, destroyed evidence highly relevant to the crime [the prosecution did not convince the Court of Appeal that the trial court]? erred when [it] concluded that the destruction of the evidence had an impact on [Justice] Delisle’s right to a full and complete defense at his [2nd Trial].”
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Then the Court of Appeal asked itself whether the [trial court] was justified in ordering a stay of proceedings. It “…concluded that the [trial court’s] analysis was flawed by errors that led [it] to erroneously conclude, firstly, that the prejudice was necessarily perpetuated [merely] by the holding of the [2nd Trial] and, secondly, that it could not be remedied. In fairness, the first conclusion seems contrary to the evidence administered; and the second, though related to the first, suffers from the omission of having considered the possibility of an instruction to the jury [in the 2nd Trial] to show that [Justice] Delisle was deprived [of his ability to make a full and fair defense] because of the lost evidence.”[xxiv]
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Also, the Court of Appeal disagreed with the [trial court’s] finding “…that, without the lost evidence, no one will be able to explain the projectile trajectory with any certainty.”[xxv] The Court of Appeal was of the view that, despite the lost evidence, it could establish that, notwithstanding the lost evidence, the pathologist erred regarding the trajectory of the projectile. Therefore, [xxvi] it was noted that, while the pathologist, Dr. Bourgault, was unacceptably negligent, even [Justice] Delisle acknowledged that Dr. Bourgault ?did not intend to breach his rights.[xxvii] Nonetheless, “…[Justice] Delisle’s right to a full and complete defense [was violated] through unacceptable negligence.” However, that did not justify a stay of proceedings which is granted only in the “…absence of a less drastic remedy.”[xxviii]
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Ultimately, the Court of Appeal held that the appropriate corrective measure was to give specific instructions to the jury. These instructions included that they could take into account the prosecution’s failure to preserve the lost evidence with the result that the lost evidence harmed the prosecution’s case. Such jury instruction “…could take the form of a statement of facts concerning the prosecution’s wrongful-albeit unintentional-loss of evidence and its effect on any expertise … seeking to contradict the pathologist.”[xxix]
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While it ordered Justice Delisle to stand trial a 3rd time, the Court of Appeal declined to provide the exact wording of the instructions given to the jury, It was left to the trial judge presiding at what would be the 3rd Trial to determine the appropriate instructions based on the evidence and testimony at that trial. The Court of Appeal also left it open to [Justice] Delisle to apply for a stay of proceedings in the 3rd Trial if that is appropriate.[xxx]
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On March 14, 2024, Justice Delisle pleaded guilty to manslaughter.
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WHAT YOU NEED TO KNOW
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·?????? The concept of double jeopardy is intended to protect an accused from being tried more than once for the same crime. In the United States, because of the prohibition against double jeopardy, if an accused is wrongly acquitted of a crime, the prosecution cannot appeal even if, for example, the trial judge made a mistake in his/her instructions to the jury. In Canada, if an accused is acquitted because of an error by the trial judge, the prosecution can appeal and, if the appeal succeeds a second, or as in the case of Justice Delisle, a third trial can be held. In effect, in Canada, when an accused is wrongly acquitted because of an error of the trial judge, or for some other similar reason, double jeopardy does not apply. Such an acquittal is considered a mistrial, allowing the accused to be retried;
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·?????? It is, in our opinion, a tribute to the impartiality of the Canadian justice system that a retired judge is arrested, tried and convicted by a jury, based on the evidence before it, of the first-degree murder of his wife;
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·?????? It is also a tribute to the Canadian system of justice that a mechanism is in place which allows the Minister of Justice to order a new trial if it appears that a miscarriage of justice has occurred; and
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·?????? It is also clear that where the prosecution in a criminal case wrongfully loses evidence, which it is obliged to turn over to the defense, Canadian courts will balance, on the one hand, the interests of the state to see the case go to trial and the interests of the accused, on the other hand, to have his rights to a fair trial and to make a full and complete defense respected to the point of ordering a stay of proceedings if there are no other means of protecting the accused’s rights.
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It goes without saying that the preceding comments are general in nature and are not intended to offer any legal advice regarding any specific situation.
[ii] R. vs. Delisle (AZ 51214878)
[iii] Delisle vs. R. (2013 QCCA 952)
[iv] Case Number 35491
[v] R. vs. Delisle (2022 QCCS 1160)
[vi] R. vs. Delisle (2023 QCCA 1096)
[vii] La Presse August 10, 2024
[viii] Paras. 31 to 45 of the Judgment in the 2nd Appeal (Unless otherwise indicated, all extracts of this Judgment were mechanically translated from the French original to the English and all internal footnotes or other references are omitted.)
[ix] Para. 3.
[x] Paras. 3, 4, 6 and 7.
[xi] Para 5.
[xii] Para. 14.
[xiii] Para. 63.
[xiv] Para. 66
[xv] Para. 71.
[xvi] Para. 70.
[xvii] Paras. 13 and 15.
[xviii] Para. 1.
[xix] Para. 99
[xx] Para. 100.
[xxi] Paras. 101 and 102.
[xxii] Para. 104.
[xxiii] Para. 111.
[xxiv] Para. 143.
[xxv] Para. 143.
[xxvi] Para. 152.
[xxvii] Para. 154.
[xxviii] Paras. 156 and 157.
[xxix] Paras. 167 and 168.
[xxx] Paras. 169 to 171.