Reference re David Milgaard Canada Supreme court 1992

[This version of the judgment has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

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April 14 1992 – Supreme Court of Canada

In January 1970 M was found guilty of murder and sentenced to life imprisonment. The conviction was affirmed by the Court of Appeal 1971and the application for leave to appeal was dismissed. The Governor General in Council in 1991 referred the case to this Court. At the hearing, the Court heard several witnesses, including M who had not testified at trial, and fresh evidence was presented.

Held: M's continued conviction constitutes a miscarriage of justice. It is recommended that the conviction should be quashed and a new trial ordered. While there is some evidence which implicates M in the murder, the Court is satisfied that the fresh evidence presented at the hearing, particularly as to the locations and the pattern of sexual assaults committed by a convicted serial rapist, constitutes credible evidence which taken together with the evidence adduced at trial could reasonably be expected to have affected the jury's verdict. The continued conviction of M would amount to a miscarriage of justice if an opportunity was not provided for a jury to consider the fresh evidence. This Court therefore advises the Minister of Justice to quash the conviction and to direct a new trial under the Criminal Code. It would be open to the Attorney General for Saskatchewan under the Code to enter a stay if that course were deemed appropriate in light of all the circumstances. However, if a stay is not entered, a new trial proceeds and a verdict of guilty is returned, then the Court would recommend that the Minister consider granting a conditional pardon to M with respect to any sentence imposed.

David Milgaard was convicted on January 31, 1970 for the murder of Gail Miller on January 31, 1969, and was sentenced to imprisonment for life. It is appropriate to begin by stating that in our view David Milgaard had the benefit of a fair trial in January 1970. We have not been presented with any probative evidence that the police acted improperly in the investigation of the robbery, sexual assault and murder of Gail Miller or in their interviews with any of the witnesses. Nor has evidence been presented that there was inadequate disclosure in accordance with the practice prevailing at the time. Milgaard was represented by able and experienced counsel. No error in law or procedure has been established. At the conclusion of the trial, there was ample evidence upon which the jury, which had been properly instructed, could return a verdict of guilty.

However, fresh evidence has been presented to us. Ronald Wilson, a key witness at the trial, has recanted part of his testimony. Additional evidence has been presented with respect to Milgaard's alleged motel room confession. More importantly, there was evidence led as to sexual assaults committed by Larry Fisher which came to light in October 1970, when Fisher made a confession.

In our view, this evidence, together with other evidence we have heard, constitutes credible evidence that could reasonably be expected to have affected the verdict of the jury considering the guilt or innocence of David Milgaard. Our conclusion in this respect is not to be taken as a finding of guilt against Fisher, nor indeed that the evidence would justify charging him with the murder of Gail Miller. We now consider the options set out in the guidelines.

As to the first, we are not satisfied beyond a reasonable doubt that David Milgaard is innocent of the murder of Gail Miller.

As to the second, we are not satisfied, on the basis of the judicial record, the Reference case and the further evidence heard on this Reference, on a preponderance of all the evidence, that David Milgaard is innocent of that murder.

Third, we are satisfied that there has been new evidence placed before us which is reasonably capable of belief and which taken together with the evidence adduced at trial could reasonably be expected to have affected the verdict. We will therefore be advising the Minister to quash the conviction and to direct a new trial under the Criminal Code. In light of this decision, it would be inappropriate to discuss the evidence in detail or to comment upon the credibility of the witnesses. Nonetheless we will set out in brief the basis for our recommendation to the Minister of Justice that she should direct that a new trial be held.

Without being exhaustive it will suffice to observe that there is some evidence which if accepted by a jury could implicate Milgaard in the murder of Gail Miller. Early in the morning of January 31, 1969, Milgaard, Nichol John and Ronald Wilson drove from Regina to Saskatoon. The evidence of Nichol John and the final version of the recantation of Ronald Wilson indicates that in Saskatoon, sometime before 7:00am on that morning they stopped a woman walking by their car to ask for directions. Shortly after that, the car became stuck, Wilson and Milgaard got out of the car and walked away in different directions to seek assistance. Wilson returned to the car before Milgaard.

Justice Tallis, before his appointment to the bench, had acted as counsel for Milgaard. Ordinarily discussions between a solicitor and a client are privileged and cannot be disclosed by the solicitor without the permission of the client. Milgaard waived all privilege and as a result, Justice Tallis testified as to statements made to him by Milgaard.

Without enumerating them fully, or commenting on which should prevail, it will suffice to observe that there were a number of differences in the testimony given by Milgaard and Justice Tallis on this Reference.

Justice Tallis testified that Milgaard denied any involvement in the murder. However, Milgaard did confirm to his counsel the sequence of events related by Nichol John and Ronald Wilson that is set out above. Milgaard confirmed the evidence given by Nichol John and Ronald Wilson that he had broken into a building at some point during the trip from Regina to Saskatoon. Justice Tallis stated that Milgaard referred to the pedestrian whom they stopped to ask for directions as an older woman, but could not give a more precise estimate of her age.  As well, Milgaard admitted to Justice Tallis that he looked at her with a view to possibly robbing her. Other evidence indicates that Gail Miller's purse was taken by somebody and thrown in a garbage can.

Nichol John and Albert Cadrain, whom the group picked up in Saskatoon, testified that Nichol John had found a compact or a makeup bag in the Wilson car after they left Saskatoon. It had not been there earlier. When Nichol John inquired about it, Milgaard seized it and threw it out of the car. Justice Tallis testified that Milgaard had confirmed this had occurred and could not give any explanation for his actions. Milgaard a lso told his counsel that he may have had a knife in his possession when he arrived in Saskatoon.

Albert Cadrain testified that he saw blood on the pants and shirt of Milgaard when Milgaard changed his clothes at the Cadrain house. In addition there is the evidence of the motel room incident which could be taken as an admission of murder by Milgaard, or as a joke made in very poor taste, or as mere drug-induced rambling.

While there is some evidence which implicates Milgaard in the murder of Gail Miller, the fresh evidence presented to us, particularly as to the locations and the pattern of the sexual assaults committed by Fisher, could well affect a jury's assessment of the guilt or innocence of Milgaard. The continued conviction of Milgaard would amount to a miscarriage of justice if an opportunity was not provided for a jury to consider the fresh evidence.

It is therefore appropriate to recommend to the Minister of Justice that she set aside the conviction and direct that a new trial be held. It would be open to the Attorney General for Saskatchewan under the Criminal Code to enter a stay if that course were deemed appropriate in light of all the circumstances.

However, if a stay is not entered, a new trial proceeds and a verdict of guilty is returned, then we would recommend that the Minister of Justice consider granting a conditional pardon to David Milgaard with respect to any sentence imposed.

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