Legal Studies 3080

Challenging Issues

Wrongful Convictions

Donald Marshall Jr., the man at the centre of one of Canada's highest-profile wrongful conviction cases, died in Sydney, N.S., hospital on Thursday morning.  Marshall, 55, of Membertou, N.S., had been in the Cape Breton Regional Hospital in intensive care for several days because of complications from his 2003 lung transplant, his brother, Simon told CBC News. His family said he had been terminally ill.  In 1971, Marshall was wrongfully convicted of murdering his friend, Sandy Seale, in Sydney's Wentworth Park. Marshall was just 17 years old when he received a life sentence for the murder that was later determined he had not committed. He was released in 1982 after RCMP reviewed his case and cleared by the Nova Scotia Court of Appeal in 1983 after a witness came forward to say another man had stabbed Seale and several prior witness statements connecting Marshall to the death were recanted.  Though the Appeal court declared him not guilty, Marshall was told he had contributed to his own conviction and that any miscarriage of justice was more apparent than real.  Roy Ebsary, an eccentric who bragged about being skilled with knives, was eventually convicted of manslaughter in Seale's death and spent a year in jail.

Systemic Racism

Marshall, a Mi'kmaq, was exonerated by a royal commission in 1990 that determined systemic racism had contributed to his wrongful imprisonment. The seven-volume report pointed the finger at police, judges, Marshall's original defence lawyers, Crown lawyers, and bureaucrats. "The criminal justice system failed Donald Marshall Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to and even beyond his acquittal by the Court of Appeal in 1983," the report said. Marshall was one of 13 children of Caroline and Donald Marshall Sr., once the grand chief of the Mi'kmaq nation. Following his exoneration, he became known as a "reluctant hero" to the First Nation for his role in fighting for native rights.

Other Challenges

• A suspect is picked up by the police and accused of murdering her mother. The Crown prosecutor is convinced that the crime was carefully planned; however, it will be hard to prove this. Rather than risk an acquittal, the Crown makes a deal with the accused: if she confesses to having done the deed, the Crown agrees to prosecute her for the less serious offence of manslaughter.

• Three boys rob a convenience store, seriously injuring the owner in the process. The oldest of them, aged 15, is tried in adult court and given a severe sentence. The other two, both aged 13, are tried in Youth Court under the Youth Criminal Justice Act and get comparatively light sentences.

• A man gets up in the middle of the night and strangles his wife. His defence is automatism; he claims he was sleepwalking and in his unconscious state he believed his wife to be a stranger who was trying to kill him. The jury acquits him.