Former judge Jacques Delisle, accused of the murder of his wife, says he is the victim of a “profound injustice” in his brief filed with the Supreme Court. He is asking Canada’s highest court to hear his case, in order to avoid a second criminal trial.
But there is more, we can read in the brief: the Court of Appeal “created a state of affairs extremely prejudicial to the administration of justice”, it is written, because it did not allow that the remedy is the end of criminal proceedings when the State has lost evidence essential to the defense of an accused.
Nicole Rainville died in 2009 from a gunshot to the head.
The Crown maintains that Jacques Delisle killed her while he claims that she ended her life. At the end of his first criminal trial, the ex-judge was found guilty and sentenced to life in prison.
In the pages of his memoir, he details how the State did not preserve or document the evidence that would allow him to be exonerated: these are the brain sections of Ms. Rainville which bear traces of the trajectory of the fatal bullet.
The pathologist André Bourgault, an employee of the Quebec state, who carried out Ms. Rainville’s autopsy in 2009, “kept no trace of his findings on the trajectory of the projectile, neither detailed notes, nor photographs, nor, that the brain itself should have been cut and preserved adequately,” we read in the brief.
This “unacceptable negligence” led the judge in charge of Jacques Delisle’s second trial to say that this abuse violated his right to full defense. He therefore ordered the proceedings against him to be stopped. “The proof is lost forever,” lamented the magistrate, making it “impossible [la tenue d’]a fair and just new trial.”
Jacques Delisle could therefore return home.
Except that the Crown appealed this decision. The Court of Appeal, although critical of the pathologist’s work, considered that a clear instruction to the jury could resolve the problem, without requiring a halt to the proceedings. These brain cuts are “only one element of the story that led to this tragedy,” she wrote last September, adding that the accused will not be deprived of presenting evidence on the trajectory of the bullet which would be likely to support the theory of suicide and to cast reasonable doubt on that of murder.
But by ruling out the termination of proceedings in a case of lost or non-preserved evidence, the Court of Appeal “denies its own jurisprudence”, without providing a reason, protests Mr. Delisle in the writing of his lawyers. Simply offering an instruction to the jury makes no sense according to him.
Furthermore, the jurisprudence in such cases has become “irreconcilable”: sometimes a stay of proceedings is granted, sometimes not, it is alleged, prompting the Supreme Court to look into this case in order to clarify the law.