Canadian Lawyer

8 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m i n 2012, a jury found former Quebec Court of Appeal judge Jacques Del- isle guilty of the murder of his wife. The sentence was life without parole for 25 years. Arguing she had committed suicide, he lost his appeal to the Court of Appeal and the Supreme Court sub- sequently declined to hear his case. Is it the end line for the former judge? Not quite. His lawyer, Jacques Larochelle, a reputed Quebec City practitioner, will now try to convince the minister of jus- tice to either order a new trial or send the file back to the Court of Appeal, in accordance with Part XXI.1 of the Criminal Code (application for minis- terial review – miscarriage of justice). This power has been part of Canada's Criminal Code since its inception in 1892. According to the regulations, the minister hands the file to a special counsel, who at the present moment is former judge Bernard Grenier, who will make his recommendations to the minister based on an inquiry by the Criminal Conviction Review Group. "I see very little chance of success, if not at all, for such a demand in this case," says highly respected Montreal defence counsel Jean-Claude Hébert. "New facts must be presented in order to get a favourable ministerial decision," he told Canadian Lawyer. So far he said he thinks it looks more like an appeal in disguise. "Maybe they all misunder- stood the evidence, but in that case, the application to the minister is not the procedural way to go," he added. Maybe, for example, a letter from the accused, containing revelations unheard at the trial could qualify as new facts, he said. The accused chose to not testify at his trial, a decision that has been criticized by some. What would justify his desire to do so now? Could he invoke bad advice from his lawyer? But then, wouldn't he need a new one to present his case to the minister? Hébert remarks that in Ontario, a different lawyer is always used to apply for such a ministerial review. However, according to Larochelle, introducing new facts is not the only way forward. He told the Montreal daily, La Presse, that it is essential to demonstrate the probability of a mis- carriage of justice. He said he was look- ing for a totally independent expert to review the ballistic evidence from scratch; he has always thought the jury botched its analysis of it because of its technical complexity and they should have acknowledged reasonable doubt. — PASCAL eLIe pascalelie636@gmail.com Regional wRap-up centrAl R oderick A. Macdonald, who died of cancer in June, at age 65, was one of Canada's greatest legal minds. His 2011-appointment to the Charbon- neau commission, which investigates corruption in Quebec's construc- tion industry, was one of his last achievements in an impressively long list. Visibly moved, Justice France Charbonneau paid a heartfelt tribute to her eminent colleague in a televised session of the commission's hearings: "When I met him for the first time, I was aware of his extraordinary reputation as a jurist, of course, which extended far beyond our borders. I knew he was an exemplary character and a free thinker, but I did not know the man himself. When I saw him come in my office, it took only one look into his deep blue eyes to catch sight of the sharpness of his mind, of the goodness of his soul, of his generosity, his compassion and his honesty." Despite that illness kept him away from the commission's hearings, he was devoted to it with heart and soul and his influence will be apparent in the results, she added, before asking the audience for a moment of silence. Charbonneau's testimonial reflects the fact even if he was an intellectual regularly engaged in the study of abstract legal concepts; he was also capable of touching people's emotions. "Guide," "mentor," "friend," are words often used by those who paid tribute to the former dean of McGill's law faculty. (See trib- utes to Roderick here: mcgill.ca/law/about/tributes-rod-macdonald) His sensitivity might explain why many of his professional accomplishments had a down-to-earth quality and a real impact on Canadian life. For example, he helped reveal the abuse suffered by aboriginal children in Canadian resi- dential schools. He is also credited for laying the foundations of the same-sex marriage legislation. He taught and published in the areas of civil law, commercial law, admin- istrative law, constitutional law, and jurisprudence and access to justice. As shown in his 77-page CV, he won a great number of awards, and the list of his positions and appointments to many commissions, institutes, or other offi- cial bodies, is no less impressive. His publications would probably fill a whole library stack. "A Renaissance legal scholar and public intellectual . . . Rod impacted the lives of thousands of scholars and students all across the globe, and I was privileged both to have been his law teacher, and then become his student," wrote Irwin Cotler, Liberal MP and former federal justice minister, on McGill's web site. - Pe 'an aPPeal in disguise' MeMOrIeS Of MAcDONALD

• Cover