Walter Gillespie, left, and Robert Mailman pose in the south end neighbourhood where they grew up in Saint John, N.B., in August, 2020.Darren Calabrese/The Canadian Press
Tamara Levy is a lawyer and the co-founder and director of the UBC Innocence Project at the Allard School of Law in Vancouver. Alex Ballantyne is a lawyer in Vancouver.
Earlier this month, after maintaining their innocence for more than 40 years, Innocence Canada clients Walter Gillespie and Robert Mailman were exonerated after being wrongly convicted of murder. Their case adds to the long list of exonerations in Canada in which police or the Crown failed to disclose information that may have prevented a wrongful conviction.
In this case, that information would have supported the men’s alibis and shown that the key Crown witnesses made previous statements to the police indicating that Mr. Mailman and Mr. Gillespie were not involved in the murder. The information would also have shown that those key witnesses had been paid by police to testify. Had that all been known, when those witnesses later recanted, Mr. Mailman and Mr. Gillespie may have been successful in their initial appeals.
This case, and other recent exonerations, shed light on the importance of full disclosure of evidence at trial, and on the opportunity for a full review of police and Crown files by lawyers and Innocence organizations attempting to remedy wrongful convictions. Improved access to postconviction disclosure is urgently needed to help identify more wrongful convictions where evidence was withheld from the accused – but today, our system is deeply flawed.
Our recent Canadian Bar Association-funded report further highlighted those flaws in our system. In Canada, to have a conviction reviewed, all applications must be supported by “new matters of significance.” Typically, that means Innocence organizations like ours attempt to gather all possible information and evidence collected by the Crown, defence, and police during the investigation and trial that was not previously considered by the courts.
But locating and obtaining that information can take years. Last year, for instance, the UBC Innocence Project received documents we had requested through freedom of information legislation to help prove our client is innocent. The problem? It took the government nine years to respond to our request. That’s nine long years of waiting, either in prison or under the harsh restrictions of parole, for someone who is innocent. To compound matters, the documents were heavily redacted, hiding information that may be critical to the case.
Lawyers advocating for individuals trying to prove their innocence can sometimes help, but only with the co-operation of the authorities in possession of that information. And to apply for this information, we face a classic catch-22 situation: having to justify our request for information disclosure, when the very information we need for our justification may be in the disclosure itself.
In the many cases that we reviewed in our report, we have found that important information in the police investigative file was never given to the defence at trial. Such files might contain names of witnesses initially spoken to but not interviewed, experts initially consulted but from whom a report was never sought, or evidence collected at the scene that could prove the client’s innocence but was never tested for DNA. This is the type of information applicants desperately need to access in order to identify the new information that might ultimately prove their innocence.
Postconviction disclosure is the most critical aspect of helping the wrongly convicted, yet there is no legislation allowing access to the very information that people need to prove their innocence. In our report on this issue, we make suggestions for reform, including granting Innocence organizations access to all police and court files related to the cases they’re investigating.
We have sat across from applicants in prison who are overwhelmed with emotion because we are the first people to have taken their claims of innocence seriously and to have visited them in prison to hear what they have to say. These same people have tried to access information on their own but to no avail, getting bits and pieces of information along the way, but no access to the file that might give them the information they need to prove their innocence. Sometimes their files are lost or destroyed during the process.
We know that innocent people can be wrongly convicted; Mr. Mailman and Mr. Gillespie’s case confirms this sad reality. And those working in the system know that, to date, we have only identified the tip of the iceberg in terms of cases of wrongful conviction. So now that we know all of that, we need to work to truly help the wrongly convicted, by demanding that police and the Crown provide those with innocence claims access to the documents they need.
There should be nothing to hide. If there is, justice demands that it be exposed, and that the innocent be exonerated.