COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 19-08-CA IN THE MATTER of Section 696.1 of the VU l’article 696.1 du Code criminel, L.C. 2002, Criminal Code, S.C. 2002, c. 13; AND IN THE ch. 13, et DANS L’AFFAIRE D’UN renvoi par le MATTER of a Reference by the MINISTER OF MINISTRE DE LA JUSTICE à la Cour d’appel du JUSTICE to the Court of Appeal for New Nouveau-Brunswick, conformément à l’article Brunswick, pursuant to Section 696.1 of the 696.1 du Code criminel, sur demande présentée Criminal Code, upon an application by ERIN par ERIN WALSH, déclaré coupable de meurtre WALSH who was convicted in Saint John, New non qualifié à Saint John, au Nouveau-Brunswick, Brunswick, on October 17, 1975 of one count of le 17 octobre 1975 non-capital murder Walsh (Re), 2008 NBCA 33 Walsh (Re), 2008 NBCA 33 CORAM: CORAM : The Honourable Justice Larlee L’honorable juge Larlee The Honourable Justice Deschênes L’honorable juge Deschênes The Honourable Justice Bell L’honorable juge Bell History of Case: Historique de la cause : Preliminary or incidental proceedings: Procédures préliminaires ou accessoires : Court of Appeal: Cour d’appel : [1982] N.B.J. No. 252 [1982] A.N.-B. no 252 [1982] N.B.J. No. 372 [1982] A.N.-B. no 372 [2008] N.B.J. No. 33 [2008] A.N.-B. no 33 [2008] N.B.J. No. 157 [2008] A.N.-B. no 157 Appeal heard and judgment rendered: Appel entendu et décision rendue : March 14, 2008 Le 14 mars 2008 Reasons delivered: Motifs déposés : October 9, 2008 Le 9 octobre 2008 Counsel at hearing: Avocats à l’audience : For the appellant: Pour l’appelant : James Lockyer, Sean T. MacDonald James Lockyer, Sean T. MacDonald and Gus F. Camelino et Gus F. Camelino For the respondent: Pour l’intimée : Jeffrey L. Mockler, Q.C. Jeffrey L. Mockler, c.r. - 2 - THE COURT LA COUR The fresh evidence is admitted, the appeal is La nouvelle preuve est admise, l’appel est allowed, the conviction for non-capital murder is accueilli, la déclaration de culpabilité pour meurtre quashed and a verdict of acquittal is entered. non qualifié est annulée et un verdict d’acquittement est inscrit. The following is the judgment delivered by THE COURT [1] Thirty-two years ago, the appellant, Erin Walsh, was convicted of the non- capital murder of Melvin Eugene (“CheChe”) Peters. This matter comes to us pursuant to a Reference by the federal Minister of Justice under s. 696.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Pursuant to s. 696.3 (3)(a)(ii) of the Code Mr. Walsh applies to admit fresh evidence and for an order that the conviction be quashed on the grounds that a miscarriage of justice has occurred. Typically this type of reference is adversarial in nature. However, in this case the Crown adopted a position which, in effect, constituted a joint submission that Erin Walsh’s conviction was obtained as a result of a miscarriage of justice. Where the parties diverge in opinion is with respect to the appropriate remedy should we agree that the conviction must be quashed. At the conclusion of the hearing, we admitted the fresh evidence without objection from the Crown, allowed the appeal, quashed the conviction for non-capital murder, and entered a verdict of acquittal. We also stated reasons for decision would follow. I. Background [2] On the afternoon of Tuesday, August 12, 1975, Melvin Eugene Peters was shot while in the back seat of Walsh’s car. He later died. Moments after the shooting, the police pulled over the vehicle and arrested its four remaining occupants: Erin Walsh, Donald MacMillan, David Walton and George Ferguson. Later that day, the police charged Walsh with non-capital murder. The main witnesses for the Crown at trial were MacMillan and Walton. Mr. Walsh testified on his own behalf and Mr. Ferguson also testified for the defence. [3] On October 17, 1975, following a four-day trial before a judge of the Supreme Court of New Brunswick, Queen’s Bench Division, and a jury, Walsh was found guilty on an indictment charging him with the murder of Peters (s. 218(2) of the - 2 - Code). His appeal to this Court, heard in 1982, was dismissed pursuant to two judgments dated July 26, 1982 (reported at (1982), 41 N.B.R. (2d) 196, [1982] N.B.J. No. 252 (QL)) and November 22, 1982 (reported at (1982), 43 N.B.R. (2d) 145, [1982] N.B.J. No. 372 (QL)). [4] Mr. Walsh, who has always maintained his innocence of the charge, has served over 29 years in penitentiary since his conviction. During the currency of his life sentence, Mr. Walsh received concurrent sentences totaling 15 years for offences committed prior to, and after, his arrest for the murder. In 2003, while still imprisoned, Mr. Walsh gained access to the Crown and police files from the Public Archives of the Province of New Brunswick. The file contained material not previously known to him. In late 2006, he brought an application to the federal Minister of Justice pursuant to Part XXI.1 of the Code for a ministerial review of his conviction, based on the previously undisclosed material retrieved from the Archives. On August 27, 2007, a comprehensive Memorandum was filed on his behalf. Pursuant to s. 696.2(3) of the Code, the Minister of Justice appointed John E.S. Briggs, a Nova Scotia lawyer, to investigate the application. Mr. Briggs heard sworn testimony from among others: the appellant; Crown counsel at the 1975 trial; and Mr. Walsh’s original defense counsel. [5] The Attorney General for New Brunswick was provided with a copy of the Briggs Report and was invited to comment on it. On January 25, 2008, in a written response, he acknowledged there had been an apparent miscarriage of justice and that “there was indeed evidence which by all reasonable accounts should have been before the jury in the matter of Erin Michael Walsh’s trial for the murder of Eugene Peters.” He concluded that it was appropriate for the federal Minister of Justice to refer the conviction to the Court of Appeal. [6] On February 28, 2008, the federal Minister referred the case to the Court of Appeal on the following terms: - 3 - I hereby respectfully refer this matter to this Honourable Court pursuant to section 696.3(3)(a)(ii) of the Criminal Code, based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Erin Walsh on the issue of fresh evidence. [7] In November 2006, Mr. Walsh was diagnosed with terminal cancer. As a consequence, the Chief Justice of New Brunswick recognized the imperative of accelerating the calendar for the hearing of the appeal, by way of reference, and permitted counsel to address him within hours of the Minister's Reference. At that hearing, Crown counsel informed Chief Justice Drapeau he would be urging the Court to quash Mr. Walsh’s conviction and enter a judicial stay of proceedings. [8] At the hearing of the reference, Mr. Walsh opposed the granting of a stay of proceedings and, instead, sought an acquittal. He testified at his trial in his own defence. He has asserted his innocence in all his court appearances, from 1975 to the present. Mr. Walsh now submits that, with the benefit of the undisclosed evidence, a jury would likely find him not guilty, and, moreover, that a jury would have done so in 1975 if it had had the undisclosed evidence. For the purposes of the s. 696.1 application, the Attorney General for New Brunswick concedes that the conviction had been obtained as a result of a miscarriage of justice and that the conviction should be quashed. Having said that, he disagrees with Mr. Walsh as to the appropriate remedy and urged us to enter a judicial stay of proceedings, presumably after ordering a new trial. [9] Having regard to the competing views as to the appropriate remedy, it is necessary to undertake a comprehensive analysis of the facts. In order to simplify the text, we frequently use the surnames only of persons involved in the underlying case. No disrespect is meant. - 4 - II. The Facts A. Overview [10] Erin Walsh arrived in Saint John the evening of August 11, 1975. He and his friend, George Ferguson, had driven from Toronto. That evening, they encountered a number of local inhabitants, most of them unemployed and heavy drinkers, including Donald MacMillan and David Walton. According to the Crown, Walsh purchased a sawed-off shotgun that night. The following morning Melvin Eugene (CheChe) Peters joined the group. After more drinking and carousing the five of them drove to nearby Tin Can Beach. While there, an argument ensued. Afterwards they headed back, in Walsh's car, to the apartment of one of the car’s occupants. Walsh was seated in the front seat between MacMillan, who was driving, and Walton. Peters was sitting in the backseat behind the driver. Ferguson sat next to Peters. The Crown alleged that, as they drove, Walsh produced the sawed-off shotgun from under the car seat and, without warning or provocation, shot Peters in the chest at point-blank range. A police car was 75 feet behind them at the time. The officers pulled Walsh's car over and arrested its occupants. Peters died half an hour later in hospital from a chest wound. Later that day, Walsh was charged with his murder. [11] At trial Walsh’s version differed markedly from that of the Crown. He denied having purchased the shotgun. He testified that after wading into the water at the beach, he looked over and saw his new-found “friends” ransacking his car. When he confronted them, he was assaulted and pinned to the ground by Peters who brandished a shotgun in his face. Walsh managed to escape and ran toward a crew of CNR employees who were working at the nearby railway tracks and implored them to call the police. No CNR employee testified at trial in support of Walsh's claims. Walsh returned to his car (which was a considerable distance from the beach) to make his escape, but was intercepted and forced into the vehicle by Peters and the others. Once in the car, Walsh grabbed at the shotgun which Peters was holding to the back of his neck. A struggle - 5 - ensued. Two shots were fired, one of which struck and eventually killed Peters. The gun ended up in the hands of the driver of the car, Donald MacMillan. [12] The jury obviously did not believe Walsh’s testimony and was otherwise not left with a reasonable doubt regarding his guilt. He was convicted of non-capital murder and sentenced to life imprisonment. [13] By way of background, we note that Mr. Walsh had difficulties pursuing his appeal. His trial counsel, John MacCallum Q.C., filed an appeal on November 17, 1975, within the 30 day time limit. Legal Aid New Brunswick agreed to fund the appeal. However, Walsh discharged Mr. MacCallum on February 11, 1976. Since Mr. Walsh was incarcerated in Ontario he sought the assistance of Ontario Legal Aid. Mr. Walsh filed a second Notice of Appeal and an application to extend time to appeal on March 20, 1979. Unaware of the Notice of Appeal filed in 1975, Chief Justice Hughes dismissed the extension of time application on May 9, 1979. Later in 1979, Mr. Walsh sought the help of the Queen's University Correctional Law Project, and in 1980 an inquiry was conducted into his situation at the request of the then Premier of New Brunswick. Later that year, a Legal Aid Advisory Committee filed a report to the Premier suggesting that the denial of legal aid had been justified. Then, on February 11, 1981, the Registrar of the Court of Appeal wrote to Mr. Walsh and advised him that his original appeal, having been filed by Mr. MacCallum in 1975, was still before the Court. Mr. Walsh then retained Eric Teed, Q.C., to argue his appeal. [14] At the hearing of the appeal in 1982, Mr. Walsh sought to introduce fresh evidence in the form of the testimony of Maurice McGinnis, one of the CNR employees from whom Mr. Walsh sought assistance on the day in question. The Court held “[...] there can be little doubt that the man who asked to have the police called was Walsh”, found Mr. McGinnis’ testimony to be “undoubtedly credible” and considered that it “might serve to corroborate Walsh’s testimony that an altercation involving himself occurred at the beach [...]”. However, the Court refused to admit this testimony as fresh - 6 - evidence on the grounds that it did not meet the necessary legal prerequisites for admissibility. Hughes, CJ.N.B. states at para. 5: While McGinnis' evidence is undoubtedly credible and might serve to corroborate Walsh's testimony that an altercation involving himself occurred at the beach, I do not think it has any significant bearing on the issues which the jury had to decide at trial namely: (1) whether Walsh, who was seated in the front seat between MacMillan and Walton, without warning reached for a double-barrel sawed-off shotgun, presumably under the front seat, as testified to by Walton, and deliberately discharged it at Peters who was seated in the back seat behind the driver; (2) whether, as testified to by Walsh, he grappled with Peters for possession of the sawed-off shotgun when the latter pointed it at him and in the struggle Peters was accidentally shot and killed; or (3) whether, after the first shot was fired MacMillan while still driving, joined in the struggle for possession of the shotgun with the result that Peters was accidentally shot when the second barrel of the gun was discharged. McGinnis' evidence, in my opinion, could not have affected the jury's verdict of guilty of second degree murder which the jury reached after hearing all the available evidence of the occupants of the car including Walsh, as they apparently believed Walton's evidence and disbelieved that of Walsh. B. The Evidence at Trial (1) Walsh’s Arrival in Saint John [15] On Monday, August 11, 1975, at 7:00 p.m., Erin Walsh and his friend George Ferguson drove into Saint John. They were en route from Toronto to Halifax in Walsh’s Cadillac. Walsh was traveling under an alias, John Barbour, because there were Canada wide warrants for him in his real name. On the way, they stopped in Montreal and purchased a quantity of methamphetamine (5 lbs.) which Walsh hoped to sell in his travels. On arrival in Saint John, they drank at several bars and ended up in an after-hours “booze can”. There they met Donald MacMillan. Walsh told MacMillan he wanted to buy a handgun. MacMillan offered to introduce him to his friend, David Walton. The - 7 - three men then drove to Walton’s apartment at 202 Princess Street, where he lived with his girlfriend, Linda Goddard. A close friend of theirs, Fred Cameron, was also present. They all consumed more alcohol. [16] Its position was that after a discussion about the possible sale of a gun, all of them drove at midnight to the Goddard family farm in Berwick, near Sussex, N.B. Walton and Linda Goddard went into the farmhouse, and emerged with a sawed-off shotgun. According to the Crown witnesses, Walsh purchased the gun for $100.00, with Ferguson contributing $20.00 of the amount. On their way back to Walton’s home, Walsh asked MacMillan to stop the car and he then fired two shells from the shotgun into an empty field. After their return to the City, and more drinking, MacMillan offered Walsh and Ferguson a place to sleep. They spent the night at MacMillan’s sister’s home on the outskirts of the City. [17] On the other hand, both Walsh and Ferguson testified that Walsh showed no interest in the gun and did not buy it because he wanted a handgun. Ferguson testified: So [Walton and Goddard] came back out of the farmhouse and Walton walked up to Walsh and he said “do you want this?” and Walsh said “no, I don’t, want this. I wasn’t looking for this”. Both denied that any shots were fired from the car on the return journey. (2) The Next Morning: the Ammunition Purchase and Peters’ Arrival [18] On Tuesday morning, August 12, 1975, Walsh, Ferguson and MacMillan drove into Saint John. According to MacMillan, they stopped at the East End hardware store in the Towers Mall to buy a box of slugs and a box of birdshot for the shotgun. The following exchange occurred between Crown counsel and MacMillan: - 8 - Q. Okay. Now, what, if anything, did you do with this box of slugs and box of bird shot that you purchased there? A. Give them to Mr. Walsh. Q. Okay. Did you see them again after you gave them to Mr. Walsh? A. No. I think he threw them in the glove compartment. Q. Okay. Now, what did you do then? A. So from there we went to David's place. Court: Would you tell the jury - or would you ask, Mr. McCarroll, how did you happen to buy the shot? A. Well, Mr. Walsh give me $10.00 and I went in and bought it and gave it to him and some change. I think it came to about [$] 9.30. [19] Walsh denied any of these events occurred. His version is that on their arrival at Walton’s apartment, they all went inside. Fred Cameron was there again. Walsh took MacMillan into the bathroom, gave him a sample of the drugs that he had purchased in Montreal and they discussed ideas for future transactions. The remainder of the narcotics was stored by Walsh in his car in a secret hiding place in the upholstery of the back seat. In the meantime, trips were made back and forth for the purchase of more alcohol. Around 11:00 a.m., Melvin Eugene (“CheChe”) Peters, a friend of Walton and MacMillan, arrived at the apartment. [20] Walton testified that Walsh began to direct racial remarks towards Peters who was black. Walsh denied this happened; he claimed the atmosphere in the apartment was good and he complimented Peters on his “salt and pepper” hat. All those present recalled that at one point an argument developed between Walton and Cameron. Walton punched Cameron in the mouth causing him to bleed.