the sequence of events that occurred in Wentworth Park on May 28, 1971, and how he stabbed Seale and slashed Marshall’s arm, then went home, fired up a barbecue, and cooked up some steaks. Ebsary claimed Marshall had fatally stabbed Seale to “finish him off.” He was found guilty of manslaughter. Donald Marshall Sr. raised a clenched fist in victory. After years of public shame about his son’s conviction, the right man was finally convicted. On November 24, 1983, Ebsary was sentenced to five years in prison in the same courtroom where Marshall was sentenced to life behind bars twelve years earlier.
But it was not over. Ebsary was released on bail pending an appeal of his conviction. The Nova Scotia Supreme Court Appeals Division ordered a new trial on September 11, 1984. Chief Justice Ian MacKeigan ruled that the trial judge in November 1983 gave the jury incorrect instructions on whether Ebsary acted in self-defence when Seale and Marshall confronted him. Ebsary’s third trial got underway in January 1985 before Justice Merlin Nunn. As Ebsary was found guilty on January 17, 1985, Marshall sat in the back of the courtroom and wept quietly. On January 30, 1985, Ebsary was sentenced to three years in prison but his lawyer appealed. On May 12, 1986, the Nova Scotia Supreme Court upheld Ebsary’s manslaughter conviction but reduced his sentence from three years in prison to one year in county jail. The Supreme Court said it reduced the sentence because of Ebsary’s advanced age and failing health and because there was an element of self-defence. On October 9, 1986, the Supreme Court of Canada refused Ebsary leave to appeal the conviction. He served his one-year sentence at the Cape Breton County Correctional Centre near Sydney. The tiny, frail eccentric lived the final years of his life in Sydney rooming houses, estranged from his longtime common-law wife and their two children.
Compensation for Marshall’s eleven years behind bars and a public inquiry into his wrongful conviction proved to be another battle he would have to fight. The federal government argued that it was up to the Nova Scotia government to compensate him since the administration of justice is under provincial jurisdiction. Nova Scotia’s attorney-general initially said that Marshall’s Aboriginal status made him a federal responsibility. Marshall wanted $1 million in compensation, taking into account his loss of freedom and pain and suffering during his incarceration. During negotiations with the provincial government, which began in June 1984, Marshall’s lawyer, Felix Cacchione, also cited a New Zealand case in which a wrongly convicted person received $1.3 million in government compensation and an American case in which $1 million in compensation was paid. But the provincial government’s position was to pay Marshall as little as possible. The final settlement wouldn’t take into account the botched police investigation. They didn’t believe that a miscarriage of justice had occurred.
Cacchione was denied access to the provincial government’s files on Marshall’s case, giving the government an advantage during compensation negotiations. As Reinhold Endres, the government’s chief negotiator, later testified at a royal commission into Marshall’s wrongful conviction, the province wanted a settlement that was as low as possible. “My concern was not that justice be done for Mr. Marshall,” he said. “The way I approached it was how far down we could come from that figure.”[14] In the appeal that acquitted Marshall, the Nova Scotia Supreme Court justices said that a miscarriage of justice in the case was more apparent than real because the murder occurred when he was involved in an alleged mugging. (The word “alleged” is used by the author because Marshall was never tried for the offence and there were questions as to whether a robbery even occurred.)
In September 1984, tired of fighting what seemed like yet another uphill battle, Marshall settled for $270,000 in compensation from the province of Nova Scotia. He agreed, in return, not to take any legal action against the Crown for his wrongful imprisonment. Compensation included $97,000 in legal costs he incurred to prove his innocence and get compensation. Cacchione and Aronson reduced their legal bills. Aronson received $70,000 and Cacchione got $27,000, but this still left Marshall with only $173,000 for nearly eleven years behind bars. That amounted to $43.79 a day for nearly 4,000 days in prison. The federal government agreed to cover half of the compensation. A fund that Montreal United Church minister Robert Hussey set up collected another $45,000 for Marshall. As Cacchione told The Globe and Mail in an interview, “This is not a happy ending. This is partial repayment of an unpayable debt.”[15]
Fifteen years after Marshall was wrongly convicted, the Nova Scotia government appointed a royal commission, in October 1986, to examine the circumstances that led to Marshall’s wrongful conviction, as well as the administration of criminal justice in the province. Alexander Hickman, chief justice of the Newfoundland Supreme Court’s trial division, headed the commission. The other members were Associate Chief Justice Lawrence Poitras of the Quebec Superior Court and Chief Justice Gregory Evans of the Ontario Supreme Court.
About eighty people packed the basement hall of St. Andrews United Church, just blocks from where Seale was murdered, when the inquiry got underway in Sydney on September 9, 1987. During the inquiry, the three commissioners learned that the police investigation was shoddy: the crime scene wasn’t sealed off and searched for clues, bystanders weren’t questioned, no autopsy was performed, a description that Marshall gave police wasn’t circulated to officers on patrol, and police didn’t search files looking for someone fitting Ebsary’s description. The Crown also failed to give the defence copies of witnesses’ contradictory police statements, and defence lawyers failed to request them. Witnesses agreed that full disclosure did not exist in Nova Scotia. The trial judge didn’t allow the defence to question a witness about his admission in the hallway outside the court that his testimony about witnessing Marshall stab Seale was a lie. Marshall’s lawyers failed to raise this legally incorrect ruling during their 1972 appeal. A 1971 RCMP re-investigation of the case simply rubber-stamped the original Sydney Police investigation. Frank Edwards, the prosecutor in Marshall’s 1983 appeal hearing, wanted to argue for an acquittal on the grounds that there was a miscarriage of justice. But he was directed by deputy minister Gordon Coles to argue that Marshall was partly to blame for his wrongful conviction. The five appeal justices who blamed Marshall for his wrongful conviction reached their conclusion in 1983 based on statements and affidavits that were filed but weren’t formally introduced before the court. This meant that the Crown and defence counsel couldn’t make submissions about them or cross-examine people who made the statements to which the judges referred in their ruling.
Justice Alexander Hickman headed the Commission of Inquiry into Donald Marshall’s wrongful conviction. Courtesy of Justice Alexander Hickman
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