JUSTICE

A scathing report

The Marshall inquiry slams the legal system

GLEN ALLEN February 5 1990
JUSTICE

A scathing report

The Marshall inquiry slams the legal system

GLEN ALLEN February 5 1990

A scathing report

JUSTICE

The Marshall inquiry slams the legal system

Just four days before the report was to be released, critics said that the $7-million study into the wrongful imprisonment of Donald Marshall Jr. might be another exercise in blaming the wrong man. Nova Scotia Liberal justice critic Ronald MacEachern said that a page of the seven-volume report of the royal commission inquiry into the Marshall case that was given to him in advance

indicated that blame for a flawed justice system would be laid at the feet of erring civil servants, particularly former provincial deputy attorney general Gordon Coles. If that happened, said MacEachern, it would indicate a “political decision” to avoid blaming elected senior officials. MacEachern’s concerns proved to be largely unfounded. Last week, when the commission’s report was made public, it blamed almost every individual and institution—with the exception of Marshall himself—for the miscarriage of justice that began 19 years ago in a Sydney, N.S., park. Concluded the report: “The criminal justice system failed Donald Marshall Jr. at virtually every turn.”

The inquiry was directed by Newfoundland

Supreme Court Chief Justice T. Alexander Hickman, who, as a former Newfoundland justice minister, is himself at the eye of a current storm because of an inquiry into sexual abuse at a St. John’s orphanage. Premier John Buchanan’s Conservative government appointed the Hickman commission in 1986. The judge and his fellow commissioners, retired justice Gregory Evans of Ontario and Associate Chief

Justice Lawrence Poitras of Quebec, were asked to unravel events surrounding the conviction of Marshall for a 1971 murder he did not commit. The inquiry sat for 93 days and listened to 113 witnesses between September, 1987, and November, 1988.

It was the most wide-ranging provincial investigation of its kind ever held, and it put Nova Scotia’s justice system on trial. Besides examining the injustice done to Marshall, the commission set a second goal: to investigate cases of apparent political interference in the province’s judicial system. And in their widely hailed report, the commissioners chronicled evidence of racism in Nova Scotia’s judicial system. In a report that recommended major

innovations in the legal system, the commissioners scathingly concluded that Nova Scotia had a “two-tier system of justice” in which officials “are more concerned about the career of a politician than an Indian.”

Marshall, the eldest son of the grand chief of the Micmac nation, was originally convicted in 1971, when he was 18, of second-degree murder following the stabbing of Sanford (Sandy) Seale, a 17-year-old black acquaintance, in Sydney’s Wentworth Park five months earlier. Marshall subsequently spent 11 years in two penitentiaries before a 1982 RCMP review of his conviction led to an appeal that resulted in his acquittal. Roy Newman Ebsary, an eccentric retired ship’s cook from Sydney, who has since died, was eventually convicted of manslaughter in the killing. Still, the Nova Scotia Appeal Court that overturned Marshall’s conviction in 1983 said that he was partly to blame for his conviction because he had not told police the truth about his actions on the night of Seale’s death. “Any miscarriage of justice,” concluded the five-member panel of Appeal Court judges, “is more apparent than real.” The Appeal Court judges added, “There can be no doubt but that Donald Marshall’s untruthfulness through this whole affair contributed in large measure to his conviction.”

The Hickman commission took issue with that conclusion. The commissioners said that the Appeal Court judges chose to “defend the criminal justice system at the expense of Donald Marshall Jr. in spite of overwhelming evidence that the system itself had failed.” The report also found fault with police and other legal officials, declaring that:

• Sydney police investigating the Seale killing in 1971 were “entirely inadequate, incompetent and unprofessional”;

• Their supervisor, now-retired Sydney police chief John MacIntyre, believed that “Indians were not worth as

8 much as whites” and discounted all I evidence that might have exonerated Marshall;

¡2 • At the original trial, the Crown prosecutor, Marshall’s own legal counsel and the presiding judge either failed to “discharge their obligations” or made “errors in law.”

As the page provided to the Liberals’ MacEachern had revealed earlier, the report criticized Coles for failing to handle the Marshall case “with the care and respect for fairness that it demanded.” The report also blamed Coles for putting obstacles in the way of RCMP investigations of two Nova Scotia Conservative cabinet ministers accused of improprieties while in office. Former culture minister Williamjoseph MacLean was convicted in 1986 of uttering forged documents worth nearly $22,000 and was fined $6,000 two years after the attorney general’s department decided not to take any action against him. Roland Thornhill, now minister of tourism, escaped prosecu-

tion for signing agreements with banks that allowed him to pay off a debt of more than $100,000 at 25 cents on the dollar.

In the Thornhill case, concluded the commissioners, Coles prepared a “woefully inadequate and misleading opinion” for then-attorney general Harry How. In the MacLean case, the commission concluded that Coles proceeded “in a way that seemed designed to protect MacLean from investigation.” The commissioners said that “special treatment was accorded the central figures in both investigations.” The report also criticized the RCMP, saying that the force’s “reluctance to proceed with politically sensitive criminal investigations is not only a dereliction of duty, but also indicates failure to adhere to the principle of police independence.”

Although the Marshall report stopped short of recommending increased compensation for Marshall, it said that the process under which the former convict, now 36, was awarded $270,000 was so flawed that it should be reviewed. Among its 82 recommendations, the report urged that Nova Scotia’s attorney general establish an “independent review mechanism” to investigate similar cases of wrongful conviction, adding that the provincial government should adopt a racerelations policy that promotes equality in the workplace and a “reduction of racial tensions.”

Buchanan’s government has already begun to take action. Attorney General Thomas Mclnnis announced last week that Ontario prosecutor John C. Pearson would be named to the new position of independent public prosecutor on March 19. Still, the announcement was greeted with some skepticism by government critics, who pointed out that Pearson was already involved in a controversy in Ottawa. He resigned as the prosecutor of Global Television reporter Doug Small, who was accused of possessing stolen property under $1,000 following a leak of federal budget documents last April, after Pearson accused an RCMP officer of perjury. Small’s trial is expected to resume on Feb. 12.

Although government officials declined immediate comment on the report’s other recommendations, it won high praise. Alexa McDonough, leader of the Nova Scotia New Democratic Party, for one, called the report “a magnificent piece of work. The government has an obligation to respond specifically to each and every recommendation.” Marshall himself, who has had brushes with the law and grappled with a drinking problem since his acquittal, was in seclusion outside Halifax and could not be reached for comment. But following his successful appeal in 1983, he told reporters that his case should ensure that no Nova Scotian is ever again treated the way he was. Said Marshall: “It’s not just me, it’s the next guy that comes along.” While there is no way for Donald Marshall to regain his lost years and lost youth, the report that bears his name should at least help avert a similar miscarriage of justice in the future.

GLEN ALLEN in Halifax