Kent Roach is the co-founder of the Canadian Registry of Wrongful Convictions and the author of Wrongfully Convicted.
Last week, a retired Quebec Court of Appeal judge pleaded guilty to manslaughter for the death of his wife, Marie-Nicole Rainville, at a second trial, and received a symbolic one-day sentence. This put an end to Jacques Delisle’s 14-year legal struggle, but it raised many questions about Canada’s current process of dealing with potential miscarriages of justice.
A jury had convicted Mr. Delisle of first degree murder in 2012 despite his claims that his wife, who had suffered a severe stroke and was said to be depressed, died by suicide. Mr. Delisle served eight years and 310 days in prison.
In 2021, then-minister of justice David Lametti, using Criminal Code powers derived from the royal prerogative of mercy, ordered a new trial for Mr. Delisle. A judge of the Superior Court then decided that a fair trial was not possible because evidence that may have revealed whether Ms. Rainville shot herself (she had gunshot residue on her left palm) or was shot by her husband was not preserved at the autopsy. Late in 2023, Mr. Delisle’s former court, the Quebec Court of Appeal, reversed this decision and affirmed the order for a new trial.
Last week, Mr. Delisle abandoned his application for a further appeal to the Supreme Court, instead pleading guilty to manslaughter. It was also revealed that Mr. Lametti overrode the advice he received from his own lawyers in ordering a new trial.
The mysteries mount. Mr. Delisle’s lawyer said he could not explain why Quebec prosecutors had rejected Mr. Delisle’s offer to plead guilty to assisted suicide for leaving his wife with a loaded gun. Quebec prosecutors told the press that they had requested without success to have access to material that Mr. Lametti had used to order the new trial remedy. Mr. Lametti explained that while his lawyers had advised that Mr. Delisle not receive a remedy, the decision was his.
Mr. Lametti, who was previously a McGill law professor, had been particularly active in granting remedies for miscarriages of justice. He also initiated a process resulting in a bill before Parliament to replace the oft-criticized role of justice ministers in deciding whether to grant new trials and appeals. But in the week that we lay Brian Mulroney to rest, the case has echoes of the late PM’s intervention in David Milgaard’s case after his justice minister Kim Campbell had initially denied an application for ministerial relief.
Both the current ministerial process and the proposed new Miscarriage of Justice Review Commission (the bill is named after David and Joyce Milgaard) are designed as inquisitorial safeguards against miscarriages of justice. As such, the Quebec prosecutors have no right under the statute or regulations to see the investigative file, let alone the legal opinions that Mr. Lametti sought before making his decision. Mr. Lametti is also right that ministers do not give reasons for such decisions, but this only adds more mystery to the process.
The Quebec prosecutors’ stance is quite aggressive. They apparently contemplated judicial review of Mr. Lametti’s decision and have suggested that it “discredits the administration of justice.” They have argued that the new evidence that Mr. Delisle and his lawyer first presented to then-minister of justice Peter MacKay could have been obtained at trial. This discounts that Canadian courts do not insist on such time limits when there may have been a miscarriage of justice. They argued that Mr. Delisle’s decision not to testify was a tactical mistake even though he explained he did not testify to protect his family from further public scrutiny.
This case reveals many systemic problems. One is mandatory sentences. According to the Canadian Registry of Wrongful Convictions, the mandatory life sentence for murder has played a role in at least seven cases where people pleaded down from murder to avoid a life sentence, only to have the courts subsequently determine that they had been wrongfully convicted of the lesser charge. Some plea deals may be too good for accused to refuse even if they are innocent or have a valid defence.
Another problem is the six years it took the ministers of justice and their lawyers to decide on Mr. Delisle’s application for a new trial. Hopefully, the new commission will work faster. Alas, it may have as few as one full-time commissioner and four other part-time commissioners. As with similar commissions in other countries, it will be vulnerable to underfunding.
One benefit will be that the new commission, unlike the minister of justice, will give reasons for its momentous decisions. This hopefully means fewer future troubling cases like Jacques Delisle’s. Claims of miscarriages of justice need to be resolved with greater speed, transparency and justice.