Saskatchewan Cases Involving Wrongful Conviction and Jury Nullification

Brian Beresh

In my last post I reviewed Tough Crimes, a collection of true stories from Canadian criminal lawyers about memorable cases in which they had appeared. I personally know two of the lawyers who provided stories.

Brian Beresh and I graduated from the College of Law at the University of Saskatchewan in 1975. After practising in North Battleford for a short while he moved to Edmonton where he is well recognized as one of the best criminal defence lawyers in the West. 

Mark Brayford has spent his legal career in Saskatchewan. He is known as a talented defence counsel. Working out of Saskatoon he is instantly recognizable for his shoulder length hair.

Brian chose a case in which he returned to Saskatchewan in 1999 to defend Larry Fisher in a murder trial for a killing that took place in 1969 in Saskatoon. It is one of Saskatchewan’s most famous cases. Originally David Milgaard was convicted of murdering Gail Miller and spent 22 years in jail before being exonerated and Fisher charged.

While not highlighted in his story Brian and I were in law school during the early 1970’s just after the original Milgaard case had made its way through the judicial system.

I admire Brian for taking on the case. His client was highly unpopular, the finding of a wrongful conviction against Milgaard was known throughout the province and everyone except the original prosecutor and police investigators was convinced Fisher was guilty. Fisher had been convicted of rape before Miller was killed, was residing near where the murder took place and there was DNA evidence connecting him to Miller.

The trial was bizarre in that up to the moment was Milgaard cleared the Crown had been vigorously asserting he was guilty. Now they were claiming with equal vigor that Fisher was the killer. Ordinarily it would have been a strong position for the defence to have put forward a credible alternative killer but Milgaard had been found to have been wrongfully convicted.

Brian did his best to sow some reasonable doubt with regard to potential contamination of the DNA and how reliable Fisher’s former wife could be in her evidence but there was no real chance of acquittal.

At the end of his story he points out a number of unanswered questions that disturbed him. It is clear he still has reasonable doubt about the conviction.

Mark Brayford

Mark also chose a case in which his client was convicted. The murder charge against Robert Latimer is as highly charged case as has taken place in Saskatchewan.

Latimer was charged with murdering his 12 year old daughter, Tracy, who had suffered brain damage at birth and was profoundly disabled. She was in constant agonizing pain which could not be effectively relieved by painkillers. To end her suffering Latimer used carbon monoxide to kill her.

The case, as all hard cases do, provoked anguish - mercy killing to a majority of Canadians but murder to activists for the disabled.

With Latimer having admitted killing his daughter Brayford’s options were limited:

Robert’s only real hope rested on the principle of jury nullification, even though in law Robert’s actions constituted murder, the jury had the right to refuse to convict if they believed it would be unjust to do so.

While jury nullification is an ancient and honoured legal tradition defence counsel in Canada cannot advise juries they can refuse to convict despite the law.

Mark argues eloquently that jury nullification should be made known to juries as one of the bulwarks against tyrannical government.

The greatest public frustration with the decision was that because Latimer was convicted of second degree murder the sentence had to be a minimum of 10 years.

Mark does not discuss how the legal predicament could have been avoided had the Crown exercised discretion by charging Latimer with manslaughter rather than murder. In several comparable Canadian cases manslaughter had been the charge. The key distinction for this type of case is that manslaughter, where no firearm is involved, does not have a minimum sentence.

I thought Latimer should have been charged and convicted of manslaughter and served a few years in prison but not 10 years.

I found it interesting that both Brian and Mark respect the law but question how their clients were found guilty. Both Brian and Mark spent a great amount of time and thought in defending these cases and losing still hurts no matter how difficult the facts and law.

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Tough Crimes edited by C.D. Evans and Lorene Shyba