Judge reserves decision on murderer's civil suit request
A New Brunswick judge on Wednesday reserveda decision on whether to hear the civil suit of a convicted murdereragainst the man whoprosecuted his case 32 years ago.
Erin Michael Walsh was convicted of the murder of Melvin "Chi Chi" Peters in 1975.
In July, Walsh filed a civil suit against William McCarroll, now a senior judge in Saint John, who was Crown prosecutor in the case. The suit also names all the chiefs of police in Saint John between 1975 and the present, the RCMP, the province and the Attorney General of Canada.
Walsh, who has a long criminal record, was travelling from Toronto when he arrived in Saint John in August 1975. He ended up drinking with a group that included the victim at a beach in the south end of the city.When later leaving the area,a struggle took place in a car,a shotgun went off andPeters was killed.
According to Walsh, he has documents from a 2005 access to information request that indicate evidencenot revealed during his trialwould have supported his defence and may have resulted in him being found not guilty.
The documents indicate police overheard a jail cell conversation between two people Walsh was travelling with suggesting one of them had committed the murder. But the conversation was never admitted into evidence during the trial.
At the 1975 trial, one of the men involved in the conversation testified against Walsh, adding to the evidence that was used to convict him of second-degree murder.He was handeda life sentence.
Walsh was granted day-parole in 1984 and later received full-parole in 1986. But a string of crimes has seen him in-and-out of prison since that time. He is currently out of jail on compassionate parole, after being diagnosed with colon cancer in March.
Walsh, who has maintained his innocence in Peters' murder, is seeking $50 million in damages for the alleged deliberate attempt to suppress evidence.
The lawsuit should be held by the court until Walsh has exhausted all options available in the criminal justice system, McCarroll's lawyer David Young told the Court of Queen's Bench in Saint John on Wednesday.
Courts have long ruled someone found guilty in criminal court cannot use the civil system to try to overturn a verdict, Young said.
The level of proof required in the two court systems is not the same and should not be mixed, he argued.
If Walsh believes he has new evidence, he should apply to the Supreme Court of Canada for a new trial, Young told the court.
Walsh went to the Appeal Courtin 1982but his guilty verdict was upheld. His case is currently under federal review.
Walsh's cancer isinoperableandhe wants to see a civil trial begin soon, said his lawyer Gus Camelino.
Under New Brunswick law, if Walsh dies before the end of a civil case, his estate won't be entitled to any compensation.
"There's really absolutely no reason to stop the civil action," Camelino told CBC News. "They're fairly independent of each other. There are no extraordinary circumstances that would require the ceasing of the civil action."
Justice Stephen McNally has reserved his decision on whether the civil suit will proceed until an undetermined date.