After what Justice Minister Arif Virani said was an “extensive” and “thorough” review of the pair’s December 2019 applications, he announced Dec. 22, 2023 that he ordered a new trial under s. 696.1 of the Criminal Code for Robert Mailman and Walter Gillespie of Saint John, N.B. who are out of custody on parole, but who were sentenced in 1984 to life in prison, without parole eligibility for 18 years.
Justice Minister Arif Virani
(As of Dec. 27, 2023, The Canadian Registry of Wrongful Convictions lists on its website 89 publicly documented cases in Canada where a criminal conviction was overturned based on new matters of significance related to guilt not considered when the accused was convicted or pled guilty.)
Mailman and Gillespie have always insisted that they did not kill a local plumber in Saint John who was beaten to death, drenched with gasoline and set alight in 1983.
Working for many years to help the pair clear their names, Innocence Canada applied for conviction review on their behalf, based on allegations that included police misconduct and false testimony from witnesses in the investigation, which the pair said amount to a miscarriage of justice.
Virani, a human rights lawyer, agreed the convictions should be revisited.
“There is a reasonable basis to conclude that a miscarriage of justice likely occurred” as a result of “the identification of new and significant information that was not submitted to the courts” at the time of Mailman and Gillespie’s trials or at the time of their unsuccessful appeals to the New Brunswick Court of Appeal in 1988, "calling into question the overall fairness of the process,” the Department of Justice (DOJ) said in a press release.
Gillespie’s leave to appeal application to the Supreme Court of Canada was dismissed in 1994.
Section 696.1 of the Criminal Code enables a person convicted of an offence, and who has exhausted all rights of appeal, to apply to the federal justice minister to review the conviction.
Before ordering a new trial or appeal, the federal justice minister must be satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.
“This determination involves a close examination of information initially submitted in support of the application, followed by an in-depth investigation,” the DOJ said. “A key consideration is whether the application is supported by new matters of significance, such as new information that has surfaced since the trial and appeal.”
The group within the DOJ dedicated to criminal conviction reviews investigates applications on behalf of the justice minister; however, the process usually takes years.
A Liberal government bill (C-40), introduced Feb. 16, 2023 and currently before the House of Commons justice committee, aims to greatly speed up reviews of alleged miscarriages of justice. The proposed Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law) would amend the Criminal Code to establish an independent commission to review, investigate and decide which criminal cases should be returned to the justice system due to a potential miscarriage of justice.
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