|
 January
25, 2005: The
Federal government released the first
national examination of the reasons for so many wrongful convictions
in Canada. This
should be required reading for every prosecutor, cop and criminal
defence lawyer in the country. News reports
Donald Marshall
Jr.
There were
actually 4 Ms in 1998 when injusticebusters first went online.
David Milgaard and Guy
Paul Morin received compensation. Chris
McCullough was ordered a new trial and the charges were withdrawn.
But now the Hamilton police have succeeded in indefinitely stalling
his lawsuit
'One of the most pivotal
people in N.S. history'
Donald Marshall
Jr. was acquitted on appeal of illegal-fishing on Sept.17,1999.
In a landmark ruling, the Supreme Court of Canada upheld native
rights outlined in treaties of 1760-61. This is Marshall's second
ordeal with the justice system. At the age of 17, he began serving
a life-sentence for a murder he didn't commit. He was finally
acquitted after spending 11 years in prison. His lawyers from
both cases say Marshall has triumphed not only legally, but also
in spirit, developing great strength of character over the years.
By: TRINA
ROACH, 2001
Marshall is
a role model and symbol
Donald Marshall., Jr may have
eventually filled his father's role as Grand Chief of the Mi'kmaq
nation had he not spent 11 years in prison for a murder he did
not commit. Marshall Jr., 46, achieved prominence of a different
kind as a role model and cultural symbol for Mi'kmaq peoples.
"Donald Marshall will
prove to be one of the most pivotal people on modern Nova Scotia
history," said Bruce Wildsmith, Marshall's lawyer.
Wildsmith represented Marshall
during his second legal battle with the justice system. Marshall
was convicted in 1996 of catching and selling 210 kgs of eel
for $787 without a licence. He appealed the decision before the
Supreme Court of Canada. It overturned his conviction on Sept.
17, upholding the 18th-century treaties between Mi'kmaq peoples
and the British Crown.
Marshall is quiet, shy and
not an attention-seeker, but is confident and understands the
necessity of standing up for his rights and the rights of Mi'kmaq
people, says Wildsmith.
Marshall's
first legal battle
As a Mi'kmaq teenager in Sydney,
N.S., Donald Marshall Jr. was wrongly convicted of the murder
of Sandy Seale in 1971. Marshall maintained his innocence from
the day he was arrested, throughout his 11 years in prison, to
the day he was finally released from Dorchester Penitentiary
in March, 1982. The Supreme Court of Nova Scotia formally acquitted
Marshall on May 10, 1983.
In Justice Denied (1986), journalist
Michael Harris tells the story of Marshall's ordeal, from his
arrest to the strange series of incidents that eventually led
to the discovery of the real murderer, Roy Ebsary. Harris' book
was made into a movie written and directed by Paul Cowan in 1989.Donald
Marshall Jr., at the forefront of two legal battles that brought
about change for Mi'kamq peoples -- in the courts and on the
The injustice of Marshall's
experience led to the establishment of a Royal Commission in
1986 that questioned the prosecution of his case, and a 1990
inquiry into the judges who heard the case. In 1991, the Marshall
Inquiry Report was made public and became central to the movement
among First Nation's communities toward indigenous, community-based
alternative justice programs.
One such organization is the
Mi'kmaq Justice Institute. Based in Sydney, N.S., it promotes
customary aboriginal justice throughout the province. Marshall
sits on the 10-member board as commissioner.
Marshall received $250,000
in compensation for his wrongful conviction, plus a monthly annuity
from the government of Nova Scotia. Documents from the Supreme
Court of Canada say the Court of Appeal's comments about the
way Marshall misled his lawyers at times and his evasiveness
during his trial played a part in determining a smaller amount
of compensation than Marshall might otherwise have received.
Halifax Lawyer Anne Derrick
took over Marshall's case from Stephen Aronson and handled it
through to the appeal. She remains in contact with her former
client and describes Marshall, or "Junior," as a hero,
acting with "dignity and courage."
Derrick says the period after
Marshall was released from prison and went to live in a Halifax
halfway house was hard for him. He struggled with alcohol problems,
but has managed to overcome them. After staying in Halifax for
a few years. Marshall returned to Cape Breton where he lives
off-reserve in Whycocomagh with his common-law wife.
Derrick says Marshall endured
a lot over the years but developed the strength of character
necessary not only to fight the legal battles he's faced, but
to work for change within his community.
"He is a man of significant
stature," says Derrick. "It's a role he's grown into."
In the spotlight
again
Marshall won his latest appeal
before the Supreme Court of Canada, which overturned his 1996
conviction for illegal-fishing. The Department of Fisheries and
Oceans (DFO) charged Marshall with catching and selling eel.
The DFO had given Marshall warnings, but after consulting with
Membertou Chief Terrance Paul, Marshall continued to fish.
Marshall's lawyer Bruce Wildsmith
says DFO set up a sting operation, waiting under cover of bushes
to watch Marshall catch the eels and hand them off to a man in
a truck. Investigators questioned the driver who gave them the
details about how much eel was exchanged and for what price.
Marshall was not the only fisherman
involved in the incident. His common-law wife was present, as
was another Mi'kmaq man from New Brunswick. But, after a period
of time, Wildsmith says the DFO dropped the others and used Marshall
as a test case to challenge the bigger issue of native fishing
rights.
Both Wildsmith and Anne Derrick,
Marshall's former lawyer in his previous legal battle, agree
that while Marshall may be reluctant to be in the spotlight,
he is committed to advancing the rights of Mi'kmaq people.
In his younger days, Marshall
may have been more impetuous, says Wildsmith, but he's learned
patience and perseverance. Throughout this past legal manoeuvring
over fishing rights, Wildsmith says Marshall understood that
it would be long and slow battle.
The Supreme Court's decision
on Sept. 17 to overturn Marshall's conviction is a victory for
Mi'kmaq and Maliseet people in the Atlantic Provinces, as it
upholds native rights to resources as outlined in the treaties
of 1760-61. Marshall may have been the individual at the forefront
of this landmark decision, but Wildsmith says Marshall is not
a ringleader. Rather, he tends to blend in with the group, says
Wildsmith.
"Marshall's quiet, retiring
manner is what caused to me have to most respect and regard for
him," says Wildsmith. "He sees himself as no different
from everyone else around him."
Behind the
scenes
Donald Marshall Jr. has no
children of his own but, over the past seven years, has spent
much of his time in the summers with Mi'kmaq youth, passing on
survival skills to teenage boys at youth camps. Marshall's former
lawyer and friend Anne Derrick says Mi'kmaq culture has always
been an integral part of Marshall's personal identity and the
camps are also one way for him encourage cultural appreciation
among the next generation.
Derrick says Marshall speaks
the Mi'kmaq language. Passing on this cultural aspect, as well
as fishing and hunting skills, not only fosters confidence among
Mi'kmaq teenagers, says Derrick, it's also where Marshall is
happiest -- being outdoors with "regular folks" doing
physical activities away from the glare of the media.
In fact, Bruce Wildsmith says
Marshall found fishing a therapeutic way of dealing with the
stress of his first legal battle and getting back to his roots.
Yet, it was this very activity that brought him reluctantly back
into the spotlight.
Halifax's Daily News quoted
Marshall as saying he hopes he never has to deal with the courts
again.
Wildsmith admires Marshall
for his ability to blend in; Derrick agrees but says, "Junior
is one a of a kind."
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