David Milgaard on November 29, 1991, with his mother Joyce and his sister. Photo: Ken Faught/Toronto Star/GetStock
Fisher was released from prison on May 26, 1994. Three years later, DNA testing had advanced sufficiently to give the technology another try. A test was performed on semen found on Miller’s clothes. On July 18, 1997, the results revealed that the semen on Miller’s clothing didn’t match Milgaard’s — but it did match Fisher’s. He was arrested on July 24 and charged with her murder, twenty-eight years after she was stabbed to death in a Saskatoon alley. Fisher was convicted on November 22, 1999, and sentenced to life in prison on January 4, 2000. The Saskatchewan Court of Appeal dismissed the appeal of his conviction and, on August 16, 2004, the Supreme Court of Canada dismissed his application for leave to appeal.
On August 19, 1997, a month after Milgaard was exonerated, the Saskatchewan government announced that he would be compensated for his wrongful conviction. They also made a commitment to hold a public inquiry into the circumstances that led to his wrongful conviction. Milgaard was awarded $10 million on May 17, 1999. The Commission of Inquiry into the Wrongful Conviction of David Milgaard got underway in Saskatoon before Justice Edward MacCallum of the Alberta Court of Queen’s Bench on January 17, 2005. The inquiry examined the investigation into Gail Miller’s murder and David Milgaard’s trial, the information that emerged after Milgaard’s conviction, how the case was reopened, and whether the investigation should have been reopened when police and justice officials received new information. It also examined systemic issues that led to Milgaard’s wrongful conviction.
The inquiry wrapped up hearings on December 11, 2006. Saskatchewan Justice Minister Don Morgan released the commission’s 815-page report on Sept. 26, 2008. Justice MacCallum believed the Saskatoon Police acted in good faith during its investigation of Miller’s murder, but he raised questions about how Inspector Art Roberts questioned Ron Wilson and Nichol John. “But for the questioning of John and Wilson by polygrapher Roberts, David Milgaard would not have been charged and tried for the crime of murder,” MacCallum said in his report. He didn’t believe that Roberts induced John to lie about seeing Milgaard stab a woman. Rather, she may have been pressured to tell him what he wanted to hear. He was also critical of the trial judge, who incorrectly applied a rule of evidence, which led to the jury hearing information that prejudiced the case against Milgaard. The judge also intervened repeatedly when witnesses were testifying, which had a similar effect.
MacCallum noted that the Saskatoon Police should have investigated Linda Fisher’s statement that she believed her ex-husband was responsible for Gail Miller’s murder. He said that whether or not to follow up on these types of reports shouldn’t be left to the discretion of the police. A policy should require these reports to be referred to the office of the Director of Public Prosecutions. Among his thirteen recommendations, he also called for the federal government to create an independent body to review allegations of wrongful convictions. “Had such an agency been in place in 1980, the investigation into the death of Gail Miller would probably have been reopened,” MacCallum wrote in his report. His recommendation came more than eighteen years after Justice Alexander Hickman made the same one at an inquiry into the wrongful conviction of Donald Marshall Jr.
Notes
1. Joyce Milgaard and Peter Edwards. “The Fight to Free My Son.” Reader’s Digest, May 2000, 172-212.
2. Ibid.
Chapter Two
Racism: The Donald Marshall Jr. Case
It was a Friday night on May 28, 1971, and seventeen-year-old Sandy Seale was playing pool with some friends in his family’s basement in Sydney, Nova Scotia. At 8:30 p.m., the athletic teenager grabbed his jacket, said goodbye to his parents, and headed off to a dance at St. Joseph’s Parish with a group of friends. But the dance was sold out by the time they arrived. After three unsuccessful attempts to sneak into the dance, Seale gave up. With his midnight curfew quickly approaching, he started walking toward Wentworth Park on his way to catch the bus home. When he reached the park, Seale ran into seventeen-year-old Donald Marshall Jr.
Junior, as family and friends called him, was from the Membertou Reserve. Following hearings in 1915, the Mi’kmaq band had been moved from highly-coveted land along the waterfront to a swampy site in a more isolated area. It took years for running water and electricity to be installed. A sewer system replaced outhouses only in the late 1950s.
The reserve of 125 band members was in the unusual position of being in an urban area, which made English the predominant language. But in the Marshall household, all the children spoke Mi’kmaq. Junior was the eldest of thirteen children. His father, Donald Sr., was the Grand Chief and spiritual leader of the 5,000 Mi’kmaqs who lived in the Maritimes. He also had his own plastering business. His mother, Caroline, worked as a cleaning lady at St. Rita Hospital in Sydney. The devoutly Catholic family was among the few on the reserve to have jobs; most people were unemployed and lived on welfare. Racism wasn’t unusual. Police sometimes warned white parents when their daughters were seen in the company of Aboriginal youths.
Junior had enjoyed attending school on the reserve, but got into trouble in a white school. He was expelled when he was fifteen after a teacher grabbed him by the ear and he hit her. He barely had a grade six education. He joined a group of toughs and had minor brushes with the law, including a four-month stint in the county jail for giving liquor to minors. Seale and Junior had met when Donald Marshall Sr. did some drywalling for Seale’s father. The two boys weren’t friends, but they ran into each other from time to time. At about 11:00 p.m. that spring evening they stopped to chat on the edge of Wentworth Park.
Just before midnight, Junior and Seale were seen talking to two men. One was a small, older man with grey hair. The other, Jimmy MacNeil, was younger and taller. The two men were on their way to the older man’s house after drinking seven beers each at the State Tavern, as well as some wine earlier in the evening. Roy Ebsary, the older man, was wearing a cloak and claimed that he was a priest from Manitoba. He asked if there were any women or bootleggers in the park. He invited the boys back to his house for a drink but they declined. They asked Ebsary for money. Seale was standing with his hands in his pockets. Suddenly, Ebsary pulled out a knife from beneath his cloak and plunged it into Seale’s stomach. The youth crumpled to the ground. Then Ebsary turned to Marshall and slashed him in the arm. Fearing for his life, Marshall ran. Ebsary and MacNeil fled to Ebsary’s house two blocks away.
Marshall ran into fifteen-year-old Maynard Chant, told him that a friend had been stabbed by one of two men, and showed him the cut on his arm. Chant, who had slipped out of a church service, was on probation for stealing milk money. He had been on his way home to Louisbourg when he bumped into Marshall. They flagged down a car and returned to the scene of the stabbing. Teenager Robert Scott MacKay, sixteen, and his date were walking to the bus stop when they found Seale on the ground. MacKay accompanied Marshall to a nearby house to call an ambulance. Chant took off his shirt and covered Seale’s wound. Then he headed home to Louisbourg.
When the police arrived, Constable Richard Walsh was the first on the scene. He found Seale lying in the street, moaning in pain, his intestines bulging from his abdomen. He was bleeding profusely: the knife had penetrated so deeply that it had sliced through his torso, cut his bowel and severed the aorta. The dying Seale was rushed to Sydney City Hospital as two police officers followed the ambulance. Oddly enough, no officers accompanied him in the ambulance, in case he was able to make a statement about the incident.
Marshall gave Corporal Howard Dean a description of the two men who had attacked him and Seale, but Dean didn’t write down the description in his notebook. Instead, the police officer placed Marshall in the back of the cruiser and brought him to the hospital to have his arm stitched up. Marshall also gave a description of the assailants to Sydney Police Sergeant-Detective Michael B. MacDonald. But he didn’t make a note of it either because his notebook was at the office. None of the police officers stayed behind to cordon