Malley wrongfully convicted: defence lawyer

The lawyer for Brian Malley says his client’s conviction for first-degree murder ranks among Canada most notorious miscarriages of justice.

The lawyer for Brian Malley says his client’s conviction for first-degree murder ranks among Canada most notorious miscarriages of justice.

“The Canadian Justice System’s Hall of Shame for Wrongful Convictions has a new candidate for induction: Brian Malley,” Edmonton lawyer Bob Aloneissi wrote in an email when asked for comment on Wednesday on client Brian Malley’s conviction.

A jury found Malley guilty of murder and two explosives-related charges late Tuesday after deliberating for about six hours following a five-week trial in Red Deer Court of Queen’s Bench.

The eight-woman and four-man jury was convinced beyond a reasonable doubt that Innisfail financial advisor Malley built the pipe bomb disguised as a Christmas present and sent it to former client Victoria Shachtay.

It exploded when she opened it, killing the quadriplegic single mother instantly as she sat in her wheelchair inside her Innisfail home.

In his email, Aloneissi compares his client with other widely publicized examples of wrongful convictions, including (David) Milgaard, (Guy Paul) Morin and Marshall, which is either a reference to either Donald Marshall Jr. or Simon Marshall.

Milgaard served more than 20 years in prison after being wrongfully convicting of killing a Saskatoon nursing aide. In his second trial, after being acquitted the first time, Morin was convicted in 1995 of killing a nine-year-old girl. DNA evidence later exonerated him.

Donald Marshall Jr. spent 11 years in prison after being wrongfully convicted of killing his friend in 1971, and Simon Marshall spent more than six years in prison after being convicted of sexual assaults. A DNA test cleared him.

Like others wrongfully convicted, “Malley’s credentials are that he was accused of a horrific murder, and he suffered the injustice of a tunnel vision investigation which skewed the facts to fit their suspect,” Aloneissi wrote.

The veteran criminal lawyer provides a link to a CBC online story on Canada’s wrongful convictions.

Malley, who was a longtime financial advisor to Shachtay and a family friend, was arrested in May 2012, six months after she died in the explosion.

More than 100 police officers had been involved in the investigation, which involved meticulously tracking purchases from hardware stores to try to match them with components of the bomb.

Officers also followed his movements and wiretap surveillance was used.

The case against Malley was based on circumstantial evidence. No witness testified to say they saw him building a bomb or placing it. In the end, a microscopic fragment of DNA that was consistent with Malley’s that was found on a note attached to the bomb, and various components traced to him that were consistent with those used in the bomb, such as gunpowder, light bulbs and a piece of steel pipe, represented the cornerstones of the case against him.

Aloneissi stressed that as a hunter and home builder Malley had a logical explanation for all of the purchases that were used to link him to the bomb.

In his closing submission to the jury, the lawyer said convicting his client would be like trying to “fit a square peg into a round hole.”

There was no evidence his client had the knowledge or motive to build a bomb. The tiny amount of DNA found was not a conclusive match to his client, and even if it was, could have been inadvertently transferred to the scene.

An appeal is expected.

In addition to his criminal conviction, Malley faces an $80-million class action lawsuit by other former clients.

A statement of claim filed in October 2012 by Calgary law firm Jensen Shawa Solomon Duguid Hawkes LLP alleges that Malley disregarded the investment goals of his clients, engaged in an investment strategy that was unsuitable for them and acted in his own best interests.

Also named as defendants in the class action are his wife, Christine Malley, as well as Assante Wealth Management (Canada) Ltd. and Assante Capital Management Ltd., whom the Malleys represented.

Last April, a hearing panel with the Investment Industry Regulatory Organization of Canada (IIROC) ruled that Brian Malley failed to know essential facts related to his clients, made unsuitable recommendations and engaged in unauthorized discretionary trading. It banned him permanently from registering with IIROC, levied a fine of $300,000 and ordered him to pay costs of $35,000.

Christine Malley was also found to have breached IIROC rules. She was issued a permanent ban, fined $250,000 and ordered to pay costs of $15,000.

pcowley@bprda.wpengine.com