Donald Marshall, Jr.

Case Summary

On the night of May 28, 1971, Donald Marshall, Jr. and his friend Sandy Seale met for the last time. The two had encountered each other by chance and went walking through Wentworth Park in Sydney, Nova Scotia. Both Marshall, who was Miꞌkmaq, and Seale, who was Black, were 17 years old.1

The youths were approached by two strangers, Roy Ebsary and James (“Jimmy”) MacNeil. Ebsary had a history of violence including a prior conviction on a “weapons charge involving a knife.”2 That night he continued this pattern of behaviour, with devastating results. After some minutes’ conversation, Marshall and Seale asked, non-threateningly, if the men could give them some money. Ebsary replied, “This is for you, Black man,” and stabbed Seale in the stomach.3 Ebsary then lunged towards Marshall, slicing his arm. Marshall’s wound was not severe, but Seale died. Police learned of this crime from Marshall, who flagged down a cruiser for help.4

Sergeant of Detectives John Maclntyre “very quickly decided that Marshall had stabbed Seale in the course of an argument, even though there was no evidence to support such a conclusion.”5 Rather than pursue the truth, the ensuing police investigation sought evidence to support this theory and discounted evidence that disproved it.6

Nowhere was this paradigm more apparent than in the evolving police statements of two teenagers, Maynard Chant and John Pratico, who had been in Wentworth Park when Seale was stabbed to death. Chant initially said that he had not witnessed the homicide, while Pratico stated that he had only seen two men fleeing from the crime scene.7 But under MacIntyre’s influence, their stories soon changed. MacIntyre took Pratico—an impressionable 16-year-old—to the site of the stabbing, and proceeded to suggest his own version of events. In the end, he persuaded Pratico to adopt this drastically different rendition. Pratico gave a second, more “detailed and incriminating statement” that supported MacIntyre’s theory, claiming this time to have “seen Marshall stab Seale during an argument.”8 Meanwhile, Maclntyre pressured Chant, “who was on probation and frightened about being sent to jail,” into corroborating Pratico's revised statement.9

Once MacIntyre had obtained the teens’ perjured statements, the Crown compounded the impact of this police misconduct on Marshall’s prospects. Prosecutors never interviewed either Pratico or Chant, despite their self-contradictory statements, nor did they disclose the teens’ original statements to defence counsel.10 Moreover, Marshall’s lawyers did not themselves conduct any investigation or interview Crown witnesses, and they failed to request disclosure of the Crown’s case against him.11

In addition, at Marshall’s trial, the judge made significant legal errors. He prevented defence counsel from putting evidence before the jury establishing that Pratico had made an out-of-court recantation of his second, incriminating police statement. Moreover, he improperly limited Pratico’s cross-examination, potentially depriving the jurors of important information for their credibility assessment of this witness.12

After a three-day trial, the jury found Marshall guilty of Seale’s murder on November 5, 1971. He was sentenced to life imprisonment.13

Ten days after Marshall’s conviction, Jimmy MacNeil came forward. He told police that he had seen Ebsary, not Marshall, stab Seale in Wentworth Park. Sydney police reported this information to RCMP Inspector Alan Marshall. As Insp. Marshall would later state, he “botched” the investigation, failing even to speak with MacNeil apart from arranging a polygraph test for him.14 Moreover, the RCMP failed to disclose this new information to prosecutors or defence counsel.15

As a result, Marshall was deprived of this knowledge when he appealed his conviction to the Nova Scotia Court of Appeal. His prospects were further hampered by the mutual failure of Crown and defence counsel to apprise the Court of Appeal of the trial judge’s legal errors. The Court itself also did not detect these fundamental flaws in Marshall’s conviction, and dismissed his appeal in September 1972.16

Another witness, Ebsary’s daughter, came forward in 1974. She told Sydney Police that on the night of Seale’s murder, “she had seen her father washing what appeared to be blood from his knife.”17 Once again, police took no action: Det. Urquhart, who had played a prominent role in the homicide investigation, dismissed her concerns and said that Marshall’s case was closed. Again this information went unreported to the Crown (and thus to defence counsel).18

Finally, in 1981, Marshall found out while serving his sentence in Dorchester Penitentiary that Ebsary had confessed to killing Seale. Marshall’s new defence lawyer, Stephen Aronson, requested in January 1982 that police reopen the investigation into Seale’s murder.19

This time, police took meaningful steps to ascertain the truth, rather than solely seeking support for their pre-existing theory. Officers interviewed the key witnesses and seized the murder weapon. However, the police who interviewed Marshall in prison—where he had spent the past 11 years—stated that he “had better tell them a story they could believe” regarding the night that Seale was killed, or else “they would leave and never return.”20 In the officers’ opinion, Marshall and Seale had been in Wentworth Park that night for some improper purpose. As a result, Marshall was coerced into “go[ing] along with what he already knew was Roy Ebsary’s version of events – that the stabbing had occurred in the course of an attempted robbery.”21

Nonetheless, in light of this fresh evidence of Marshall’s innocence, then Minister of Justice Jean Chrétien directed the Nova Scotia Court of Appeal to rehear his conviction appeal.22 Marshall testified that Ebsary had killed Seale and explained that there had been no attempted robbery.23 In May 1983, the Court overturned Marshall’s conviction and acquitted him.24

However, the Court also baselessly blamed Marshall for his own wrongful conviction and for instigating the events that led to Seale’s death. The Court wrongly concluded that Marshall had lied and had in fact been attempting robbery with Seale when the latter was killed, in effect also blaming the deceased Black youth for his racially motivated homicide.25 The Court stated that Marshall’s supposed “untruthfulness through this whole affair contributed in large measure to his conviction,” and that “[a]ny miscarriage of justice” was therefore “more apparent than real”.26

In 1985, after three trials, Ebsary was convicted of manslaughter in the death of Sandy Seale. He spent one year in prison.27

In October 1986, the Nova Scotia government appointed a Royal Commission to determine whether Marshall’s murder conviction was a miscarriage of justice and how it had come about. In 1989, the Commission published a report documenting its “inescapable, and inescapably distressing” findings that “[t]he criminal justice system [had] failed Donald Marshall, Jr. at virtually every turn.”28 It concluded that “this miscarriage of justice could have and should have been prevented if persons involved in the justice system had carried out their duties in a professional and/or competent manner.”29 The Commission identified numerous people who had failed in their role, including police, prosecutors, defence counsel, the trial and appellate judges, and senior government officials.30 It found that these myriad failures were attributable at least in part to systemic anti-Indigenous and anti-Black racism.31

In 1990, nearly two decades after his wrongful conviction, the government of Nova Scotia apologized to Marshall for his wrongful conviction.32 He had initially received only $270,000 in compensation despite spending over a decade in prison, in the wake of his ambivalent acquittal. After the Royal Commission released its scathing report, Marshall’s compensation was increased to a $1.5 million lifetime pension, which he received until his death in 2009.33


[1] Chief Justice T. Alexander Hickman (Chairman), Associate Chief Justice Lawrence A. Poitras (Commissioner), The Honourable Mr. Gregory T. Evans, Q.C. (Commissioner). Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (Halifax: Province of Nova Scotia, 1989) at pp. 2, 19 [Digest of Findings and Recommendations]; R v Marshall, 1983 CanLII 5140 (NS CA), 57 NSR (2d) 286 at p. 291 [Marshall 1983].
[2] Digest of Findings and Recommendations, supra note 1 at pp. 2, 19; Edward Butts, “Donald Marshall Jr” (2 September 2020), The Canadian Encyclopedia, online: <https://www.thecanadianencyclopedia.ca/en/article/donald-marshall-jr#> (accessed 17 January 2023) [Butts].
[3] Digest of Findings and Recommendations, supra note 1 at pp. 2, 19.
[4] Marshall 1983, supra note 1 at p. 298.
[5] Digest of Findings and Recommendations, supra note 1 at p. 3.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid. at p. 4.
[11] Ibid.
[12] Ibid. at pp. 4, 7.
[13] Ibid. at p. 4; Marshall 1983, supra note 1 at p. 287.
[14] Digest of Findings and Recommendations, supra note 1 at p. 4; Butts, supra note 2.
[15] Digest of Findings and Recommendations, supra note 1 at p. 4.
[16] Ibid.; Marshall 1983, supra note 1 at p. 287.
[17] Digest of Findings and Recommendations, supra note 1 at p. 5.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid. at pp. 5-6.
[22] Ibid. at p. 6; Marshall 1983, supra note 1 at p. 287.
[23] Marshall 1983, supra note 1 at pp. 314, 317-318.
[24] Ibid. at p. 321.
[25] Ibid. at pp. 292, 294, 316-317, 320-322; Digest of Findings and Recommendations, supra note 1 at pp. 2, 7, 19, 23.
[26] Marshall 1983, supra note 1 at pp. 321-322; Digest of Findings and Recommendations, supra note 1 at p. 7.
[27] R v Ebsary, 1986 CanLII 4648 (NS CA), 27 C.C.C. (3d) 488 at pp. 490, 508.  
[28] Digest of Findings and Recommendations, supra note 1 at p. 1.
[29] Ibid. at p. 19.
[30] Ibid. at pp. 19-24.
[31] Ibid. at pp. 1, 10, 19.
[32] Windspeaker Staff, “Nova Scotia government apologizes to Donald Marshall for injustice”, Windspeaker Vol. 7, Issue 24 (1990) at p. 2, online at AMMSA.COM: <​​https://ammsa.com/publications/windspeaker/nova-scotia-government-apologizes-donald-marshall-injustice> (accessed 17 January 2023).
[33] Heather Conn, “Marshall Inquiry” (2 September 2020), The Canadian Encyclopedia, online: <https://thecanadianencyclopedia.ca/en/article/marshall-inquiry> (accessed 17 January 2023).

 

 

Case Details

  • Full name:

    Donald Marshall, Jr.

  • Gender identity:

    Male

  • Race/ethnicity:

    Indigenous (First Nations, Inuit, Métis, Native American, etc.)

  • Age - at the time of conviction:

    18

  • Charges - specific offences:

    Non-capital murder

  • Date of conviction:

    1971-11-04

  • Date wrongful conviction was overturned:

    1983-05-10

  • Sentence - total time served:

    11 years, 05 months, 28 days

  • Legal mechanism by which wrongful conviction was overturned:

    Other

  • Status of alleged crime:

    Solved

  • Compensation Received?

    Yes

  • Guilty plea?

    No

  • Cause(s) of wrongful conviction:

    Marshall, a Mi’kmaq man, was wrongfully convicted of murder due to myriad failures by police, prosecutors, and defence counsel to fulfill their duties and conduct themselves with competence and professionalism. The underlying cause of this miscarriage of justice was anti-Indigenous systemic racism.