"CANADA SHOULD HONOUR THE LEGACY OF DONALD MARSHALL JR. BY CREATING A COMMISSION MODELLED ON THE BRITISH SYSTEM TO REVIEW ALLEGED WRONGFUL CONVICTIONS;"
THE GLOBE AND MAIL;
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The Globe and Mail has published a powerful editorial call for a truly independent system for examining and reviewing alleged miscarriages of justice;
The Globe was responding to the recent death of native leader Donald Marshall Jr., himself the subject of a notorious miscarriage of justice that took far too many years to remedy.
The need for a truly independent system for examining and investigating wrongful convictions is all the more necessary given Canada's ever-mounting revelations of miscarriages of justice - many involving Dr. Charles Smith, who purported to be a forensic pediatric pathologist;
"This week's funeral for the native leader Donald Marshall Jr. should be an occasion to reflect on one aspect of his legacy that remains unfulfilled," the August 13, 2009, editorial begins;
"Although he is celebrated as a hero to native people for his fishing-rights victory at the Supreme Court, Mr. Marshall was just as important in the fight to correct miscarriages of justice," the editorial continues;
"At 17, Mr. Marshall was wrongly convicted of murdering a friend in a Sydney, N.S. park and spent 12 years in prison. A royal commission into his prosecution found that the justice system failed him at nearly every turn before, during and after his trial. The first and most significant recommendation to emerge from that process was the need for an independent body to examine and investigate alleged cases of wrongful conviction.
That was in 1989. Twenty years later, no such independent body exists.
In the interim Canadians have seen the long, slow process to release wrongly convicted men - David Milgaard, Guy Paul Morin, Thomas Sophonow, James Driskell and William Mullins Johnson, among others.
Six Canadian judicial inquiries have praised the approach taken in Britain, where the Criminal Cases Review Commission was established in 1997. It is a body independent of government, with a staff of 100. It has reviewed more than 10,000 cases, roughly 1,000 per year, and referred 4 per cent of those, or about 40 a year, to appeal courts as potential miscarriages of justice.
That contrasts with the Canadian equivalent in the federal Department of Justice, which has just six staff members. From 2002 to 2008, they referred 11 cases to appeal courts, leading to seven acquittals.
Canadian prisoners who allege they have been wrongly convicted have had to rely largely on the work of the Association in Defence of the Wrongly Convicted, a group of lawyers who for years volunteered to work on complex cases for little remuneration.
Earlier this year AIDWYC were given an extraordinary $1-million donation from a retired judge, which will allow them to expand, but one can only wonder how many cases of potentially wrongful convictions are not being probed. The ones we know of are all murder cases, but it seems unlikely that the only wrongful convictions in the Canadian justice system are for murder.
Canada should honour the legacy of Donald Marshall Jr. by creating a commission modelled on the British system to review alleged wrongful convictions."
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WIKIPEDIA ACCOUNT: (FOR THOSE UNFAMILIAR WITH THE MARSHALL CASE);
Wrongful conviction
Marshall was sentenced to life imprisonment for murdering acquaintance Sandy Seale in 1971. Marshall (age 17) and Seale (age 17) had been walking around Sydney's Wentworth Park during the late evening. They confronted and attempted to rob Roy Ebsary, an older man they encountered in the park. A short scuffle occurred and Seale fell mortally wounded by a knife blow which Ebsary delivered. Ebsary admitted that he had stabbed Seale but then lied about his role to the police who immediately focused on Marshall, who was 'known to them' from previous incidents. Police speculated that Marshall, in a rage for some reason, had murdered Seale. From the beginning, the system seemed determined to prove that Marshall was guilty.
Marshall spent 11 years in jail before being acquitted by the Nova Scotia Court of Appeal in 1983. A witness came forward to say he had seen another man stab Seale, and several prior witness statements pinpointing Marshall were recanted. In this appeal which acquitted him of the previous murder charge, Marshall was assumed to have lied in his first trial about his and Seale's activities on the night of Seale's death. The accusation was that he and Seale had actually approached Ebsary with the intention of robbing him and they were in the park that night. Ebsary was subsequently tried and convicted of manslaughter. When Marshall's conviction was overturned, the presiding judge placed some blame on Marshall for the miscarriage of justice, calling him "the author of his own misfortune." This was viewed as a "serious and fundamental error" by the Royal Commission report. Anne Derrick, Q.C., well-known social justice advocate lawyer, worked as Marshall's counsel,and Order of Canada recipient Clayton Ruby was co-counsel for Marshall, along with Anne Derrick, during the 1989 Royal Commission on Marshall's prosecution.
The Crown Attorney's failure to provide full disclosure (contradictory and coerced statements by witnesses, because they believed the evidence not provided had no bearing in the case) brought about changes in the Canadian rules of evidence regarding disclosure. The prosecution must provide full disclosure without determination on what may be useful to the defence (that is the defence's duty to decide).
[edit] Compensation
Donald Marshall Jr. spent 11 years imprisoned, from 1972 to 1983. He was imprisoned just over half the time of David Milgaard, another Canadian wrongfully convicted. Milgaard was compensated 10 million CAD while Marshall was compensated about 200 000 CAD and put on a monthly stipend for the rest of his life.
In response, a Royal Commission was formed to investigate what had caused the miscarriage of justice; this led to an influential case on judicial independence in Canada, Mackeigan v. Hickman.
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Harold Levy...hlevy15@gmail.com;
