New Brunswick judge apologizes for 'miscarriage of justice,' decades of lost freedom

FREDERICTON -

The top judge of New Brunswick's Court of King's Bench offered her "sincere apology" on Friday to two men who served lengthy prison sentences for a 1983 murder they didn't commit.

Chief Justice Tracey DeWare said the justice system failed Robert Mailman and Walter Gillespie, who were convicted in 1984 of second-degree murder and received life sentences in the killing of George Gilman Leeman in Saint John, N.B. The federal justice minister overturned those convictions last month and ordered a new trial.

"I wish to thank Mr. Mailman and Mr. Gillespie for their perseverance, while acknowledging this recognition is little comfort for the decades they spent under the shadow of this murder conviction," DeWare wrote. Her four-page decision came a day after the Crown announced it would not enter evidence in a new trial and she found the men not guilty.

The judge said miscarriages of justice should never occur, but "regrettably" they sometimes do.

"The only reasonable response," she said, "is to double down on our efforts to improve our justice system and guard against these anomalies, which is accomplished first by shining a light on the circumstances that led to these devastating situations."

DeWare praised the courage of Mailman, Gillespie and their legal team for bringing to light what she called a "miscarriage of justice." The lessons that will be learned as a result of this case will benefit the justice system as a whole, she added.

Thursday's hearing in Saint John was held after Justice Minister Arif Virani quashed the convictions on Dec. 22, saying new evidence had surfaced that called into question "the overall fairness of the process." However the federal Justice Department said in a statement Friday that the investigative report that led to that finding is confidential.

David Taylor, a spokesman for Virani, said wrongful convictions are a matter of deep concern to the government. "We believe that a fair and equitable criminal justice system must guard against potential miscarriages of justice," he said in a statement.

"The provinces and territories are responsible for the administration of justice, which includes charging and prosecuting most offences under the Criminal Code and making submissions as to the appropriate sentence to be imposed."

   After the hearing Thursday, a lawyer with Innocence Canada, the organization representing the two men, called for a public inquiry. James Lockyer said that if there was a miscarriage of justice for Mailman and Gillespie, there are likely others. He noted the case of Erin Walsh, who fought 33 years to clear his name of a murder that happened in August 1975, also in Saint John.

"If there's two cases like this, you can bet your bottom dollar there's a lot more," Lockyer said. "Public inquiry -- airing everything in public, you can't do better."

Taylor directed a question about a public inquiry to the province. "This matter was investigated by Saint John police and prosecuted by the New Brunswick Crown," he said.

New Brunswick Justice Minister Ted Flemming was not available for an interview Friday, and the department did not respond to a request for comment about a possible public inquiry and an apology from the province to the two men and the murder victim's family. A spokesman said the department had nothing to add beyond the Crown's statement in court that it would not enter evidence.

Green Leader David Coon said he supports a public inquiry to ensure that such a "terrible travesty of justice" is never repeated. Rob McKee, Liberal justice critic, said the province, the police force and the judicial system owe the men and the victim's family a "sincere" apology.

"There should certainly be a review done of this case to gain a better understanding of what went wrong and how we got here. No one should have to wait decades for justice," he said.

"This case along with others point to flaws in our investigation process as well as the justice system, and that requires a thorough and continuous review."

A written submission to the court by Innocence Canada highlighted a litany of failings. It said witnesses recanted testimony and police officers did not disclose that one witness was paid for his testimony. The forensic evidence was below the standards expected in 1984, and the Crown urged the jury to find that the men's alibi -- which was supported by numerous witnesses and a receipt for a purchase -- was "a lie to escape their guilt."

The Saint John police have not responded to the court's findings, beyond a short statement saying they are waiting to see the federal Department of Justice's review of the case and to understand the rationale that led to the acquittal.

In her decision, DeWare said that since the Crown chose not to provide evidence, she must "infer that serious mistakes were made, and the miscarriage of justice that occurred as a result of these mistakes (has) had the direst of consequences for these two men."

The mistakes also meant that Leeman's family and friends face injustice because they don't know who killed him or why, she added.

"As chief justice of the Court of Kings Bench of New Brunswick, I can only at this juncture, express my most profound regret to Mr. Mailman, Mr. Gillespie, their family and friends, as well as the family and friends of Mr. Leeman that these events unfolded as they did," she said.

"Mr. Mailman and Mr. Gillespie have been deprived of decades of their liberty and shrouded by the shame of a murder conviction. Hopefully their acquittals to the charge will provide Mr. Mailman and Mr. Gillespie with a sense of peace accompanied by the public recognition that they have been found not guilty of this crime."

This report by The Canadian Press was first published Jan. 5, 2023.

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