N.B. minister commented publicly on wrongful conviction case, affidavits allege

An alleged conversation between Justice Minister T.J. Burke and a University of New Brunswick law student concerning the wrongful conviction of Erin Michael Walsh is renewing calls for a full public inquiry into the 1975 case.

Joel Payne, a third-year student, said he heard the justice minister speak to students on March 17 at an event during which he was asked about the Walsh case and why the government hadn't cut a deal on financial compensation for the wrongful conviction.

Walsh has a civil case pending against the government, and is seeking compensation.

After the presentation, according to an affidavit sworn by Payne in Fredericton on March 31, Payne attended a reception with Burke where he spoke about the Walsh case again. He said Burke urged him to look at the Walsh court file and told him that Walsh had been in Saint John, at the time of the murder, for a drug deal.

"The attorney general then added that Walsh had killed before or that he suspected that Walsh had killed before," Payne said in the affidavit.

Separate affidavits filed by two other second-year law students, Dave Steele and Shane Martinez, alleged they, too, asked Burke about the Walsh case during his presentation, but did not hear the remarks Payne said he made at the reception afterward regarding Walsh's alleged involvement in another murder.

Both Steele, who said he only knew Payne by his first name, and Martinez said Payne approached them in the library and told them about his conversation with the justice minister, and they subsequently wrote down the conversations as they remembered them.

All three students volunteered to swear affidavits — in Fredericton on March 31 — detailing what they heard or were told. None of those affidavits has been filed in court.

Burke's office has declined to comment on the allegations because the matter is before the courts.

Late Wednesday, however, Premier Shawn Graham's office issued a release saying that in light of the allegations, Graham was transferring responsibility for the Walsh case from Burke to Business New Brunswick Minister Greg Byrne.

"Byrne served as attorney general and minister of justice from 1997 to 1999," the brief release noted.

Walsh's wife calls for public inquiry

Walsh's wife, Angie, was unavailable for an interview, but in a statement, she lashed out at Burke's alleged comments.

"For the attorney general to act in such a careless way should tell the people of New Brunswick he is not competent to serve in this office," her statement said.

"The government should do the right thing and conduct an independent public inquiry … to settle this thing. It is obvious that there will be no justice for our family as long as this is in the hands of the politicians. My husband is dying, and we are beside ourselves waiting for a conclusion and peace."

Sean MacDonald, a lawyer for Walsh, said if the affidavit is accurate, it underscores the need for a public inquiry into the case.

New Brunswick Conservative Leader David Alward also said Burke should do the right thing and resign while this controversy is still hanging over him.

 "I believe it is important for the minister of justice to temporarily step aside until the situation is completely reviewed," Alward said.

Walsh, who was diagnosed with colon cancer in March, maintained his innocence of the 1975 murder for 32 years and in March 2008, was acquitted of the crime by the New Brunswick Court of Appeal.

He served close to 10 years in jail for the murder before being granted day-parole in 1984 and full parole in 1986. A string of crimes has seen him in and out of prison since that time. He is currently out of jail on compassionate parole, granted after his cancer diagnosis.

Walsh's family has not said how much money it is seeking in the civil case.

By comparison, Steven Truscott received $6.5 million for his wrongful conviction for a 1959 murder.

Considering Erin Walsh's failing health, a provision in the Survivor of Actions Act in New Brunswick is worrying the family. The clause stipulates that if Walsh dies before his civil case is resolved, any financial settlement could be severely reduced.

Under the law, the only damages that can be awarded are for an actual loss to the person or their estate and cannot include payments for "loss of expectation of life, pain and suffering."

Walsh originally convicted in 1975

Walsh was convicted of murdering Melvin (Chi Chi) Peters in August 1975. At the time, Walsh, who has a long criminal record, was travelling from Toronto when he arrived in Saint John and joined a group of people, including Peters, for drinks at a beach in the city's south end. When leaving the area, a struggle took place in a car, a shotgun went off, and Peters was killed.

At Walsh's trial in 1975, prosecutors presented the case as open and shut. The jury took only one hour to convict him of second-degree murder, and he received a life sentence. Earlier appeals to the New Brunswick Court of Appeal in July 1982 and November 1982 were dismissed.

In February 2008, Federal Justice Minister Robert Nicholson ordered the conviction be reviewed in light of new evidence.

The evidence, obtained by Walsh as part of a 2005 access to information request, included a report of jailhouse conversations that suggested someone else shot Peters.

The 1975 police report from Saint John police Det. Douglas Titus said Titus overheard a jail cell conversation soon after the murder between two people Walsh had been travelling with. David Walton asked Don McMillan why he shot Peters, according to the report, which noted that the men appeared to be drunk.

The report was not disclosed to Walsh's lawyers at the time.

The appeal court heard that the former Crown prosecutor, William McCarroll, later told an investigator working on Walsh's case he didn't disclose the report because he considered the conversation to be "drunken jabbering" the defence wouldn't have used in their case.