HIS MAJESTY THE KING, – v. –, 2024 NBKB 2

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN His Majesty the King v. Walter Francis Gillespie and Robert Elvany Mailman 2024 NBKB 002 SJCR/21/2023 BETWEEN: HIS MAJESTY THE KING, – and – WALTER FRANCIS GILLESPIE and ROBERT ELVANY MAILMAN DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Saint John, New Brunswick DATE OF HEARING: January 4, 2024 DATE OF DECISION: January 5, 2024 APPEARANCES: Karen Lee and Brian Munn, for His Majesty the King Jerome Kennedy, K.C., James Lockyer and Pamela Zbarsky, for Walter Francis Gillespie and Robert Elvany Mailman

DEWARE, C.J. [ 1 ] On December 21, 2023, Justice Minister Arif Virani signed an order pursuant to

section 696.3(3) (a)(

i) of the Criminal Code of Canada . This order granted a new trial for Robert Mailman and Walter Gillespie for the November 1983 murder of George Leeman. As a result of Minister Virani’s order and as Chief Justice of the Court of King’s Bench of New Brunswick, this was returned to me on December 22, 2023, nearly forty years after these men were convicted by a jury in the murder of Mr. Leeman on May 11, 1984. [ 2 ] On January 4, 2024, Mr. Mailman and Mr. Gillespie appeared before this Court.

Upon their arraignment, they once again entered not guilty pleas to the murder of George Leeman as set out in the indictment dated April 2, 1984. With the consent of the Attorney General, this matter proceeded by judge alone. The Crown led no evidence in support of the charge in the murder of Mr. Leeman. In Canada, an individual is presumed innocent until proven guilty. Mr. Mailman and Mr. Gillespie regained the presumption of innocence available to all Canadians charged with a crime following the issuance of Minister Virani’s order. As there is no evidence before the Court, this Court must find Mr.

Mailman and Mr. Gillespie not guilty of the 1983 murder of Mr. Leeman. [ 3 ] The justice system functions in Canada as a result of the tireless efforts and commitment of thousands of individuals at every level of the process, from the initial stages of an investigation of a crime by police up to the trial itself. In the case of Mr. Mailman and Mr. Gillespie, Minister Virani concluded that mistakes were made, and a miscarriage of justice had resulted.

The Crown has elected to tender no evidence, and so I must infer that serious mistakes were made and the miscarriage of justice that occurred as a result of these mistakes have had the direst of consequences for these two men. These mistakes have also caused an injustice for the family and friends of Mr. Leeman who have been deprived of answers as to the circumstances of his homicide. None of this can be accepted in a free and democratic society based upon the rule of law. [ 4 ] As Chief Justice of the Court of King’s Bench of New Brunswick, I can only at this juncture express my most profound regret to Mr.

Mailman, Mr. Gillespie, their family and friends as well as the family and friends of Mr. Leeman that these events unfolded as they did. Mr. Mailman and Mr. Gillespie have been deprived of decades of their liberty and shrouded by the shame of a murder conviction. Hopefully their acquittals to the charge will provide Mr. Mailman and Mr. Gillespie with a sense of peace accompanied by the public recognition that they have been found not guilty of this crime. [ 5 ] Mr. Mailman and Mr. Gillespie have remained steadfast in their declarations of innocence in the murder of Mr.

Leeman since their arrests in January of 1984. They have never waivered in their position, and they have never abandoned their pursuit of an acquittal, exploring every possible avenue even after they had been released from prison. The administration of justice owes a debt of gratitude to Mr. Mailman, Mr. Gillespie and their legal team who have pursued this matter relentlessly. [ 6 ] Miscarriages of justice should never occur.

Regrettably, they sometimes do, and the only reasonable response is to double down on our efforts to improve our justice system and guard against these anomalies, which is accomplished first by shining a light on the circumstances that lead to these devastating situations. It is only through the courage of individuals such as Mr. Mailman, Mr. Gillespie and their dedicated legal team that miscarriages of justice are called out and corrected. The lessons that will be learned as a result of this case will benefit the justice system as a whole. I wish to thank Mr. Mailman and Mr.

Gillespie for their perseverance while acknowledging this recognition is little comfort for the decades they spent under the shadow of this murder conviction. [ 7 ] The justice system in this case failed Mr. Mailman, Mr. Gillespie and Mr. Leeman. For that, as Chief Justice of the Court of King’s Bench of the New Brunswick, I offer my sincere apology. DATED at Moncton, New Brunswick this 5 th day of January 2024. _____________________________________ Tracey K. DeWare, Chief Justice of the Court of King’s Bench of New Brunswick