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Power without Law

Power without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism

Copyright Date: 2009
Pages: 255
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  • Book Info
    Power without Law
    Book Description:

    In Power without Law Alex Cameron enlivens the debate over judicial activism with an unprecedented examination of the details of the Marshall case, analyzing the evidence and procedure in the trial court and tracing the legal arguments through the Court of Appeal to the Supreme Court of Canada. He argues that there were critical defects in the process - the successful argument at the Supreme Court of Canada was never tested in the lower courts, the Crown's expert was precluded from testifying about a vital document, the Court's analysis does not accord with the historical evidence, and the treaty rights are inconsistent with the colonial law of Nova Scotia.

    eISBN: 978-0-7735-7667-4
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-13)

    So begins the judgment of Justice Ian Binnie, writing for the majority of the Supreme Court of Canada in the case ofR. v. Marshall (No. 1), [1999] 3 S.C.R. 456.¹ Justice Binnie went on to decide that the Maliseet, Passamaquoddy, and Mi’kmaq of the Maritime Provinces have a constitutionally protected treaty right to hunt, fish, and gather for the purpose of making a moderate livelihood.

    One need only read these opening paragraphs to divine the ultimate decision. They colourfully and sympathetically describe an innocent pastoral scene: fishing in tranquil coastal waters. They link that activity with what Justice Binnie...

  5. 1 The Canadian Constitution
    (pp. 14-22)

    To understand the Supreme Court of Canada decision in theMarshall (No. 1)case, it helps to have a basic understanding of Canadian constitutional law. To some who have happened to glance at one or other great, long, and complex decision of the Supreme Court of Canada in a constitutional case, this might sound intimidating. To others who might have suffered through uninspiring high school courses in history or political science, it might sound boring. It is neither. The story behind the Canadian Constitution is fascinating.

    When most Canadians think of the Constitution, they might think vaguely of the BNA...

  6. 2 Judicial Activism and Its Critics
    (pp. 23-43)

    After the adoption of the Canadian Charter of Rights and Freedoms in 1982, and after a number of early Charter decisions, a debate gradually emerged concerning the new role of the judiciary in Canada’s democracy. Critics suggested that “activist” courts were pre-empting legislatures and the executive, making decisions that were properly the decisions of elected officials, not unelected judges. Critics were disturbed that because these decisions were constitutional law, they could not be overruled easily – and sometimes not at all – by legislatures. Others responded by saying that judges are not “activist,” but are merely applying the principles set out in...

  7. 3 The Legal Background to Marshall (No. 1)
    (pp. 44-47)

    Native rights in Nova Scotia are a relatively recent judicial development. In earlier periods, native rights claims were given short shrift by judges. Perhaps the best example is the 1928 case ofR. v. Syliboy

    Mr Syliboy was the Mi’kmaq “Grand Chief” in Nova Scotia. He was charged in Inverness County, Cape Breton, with possession of muskrat and fox pelts, in violation of the provincial Lands and Forests Act. He claimed that under a treaty with the British governor of Nova Scotia in 1752, Mi’kmaq Indians were permitted to hunt and trap at any time. The judge said, correctly, that...

  8. 4 Marshall (No. 1) in the Trial Court
    (pp. 48-70)

    The Provincial Court in Antigonish, Nova Scotia, where Mr Marshall’s case was tried, is an unassuming building, located next to some fast-food outlets just down from the Exhibition Grounds. In November 1994 two small groups assembled before Provincial Court Judge John Embree, a former Crown prosecutor, to deal with the charges against Mr Marshall. Mr Marshall was represented by Bruce Wildsmith, a very talented professor at Dalhousie Law School, who had carved his name by pursuing native rights claims in Nova Scotia’s Courts. His advocacy on Mr Marshall’s behalf was impeccable. He was assisted by Eric Zscheile, an able advocate...

  9. 5 The Court of Appeal
    (pp. 71-74)

    The trial judge convicted Mr Marshall of unlawful fishing. Mr Marshall appealed to the Nova Scotia Court of Appeal. Before looking at their decision, I need to explain the role of that court, compared to the role of the trial judge.

    Courts of Appeal are courts of error and courts of “principle.” Their job is to correct mistakes, particularly legal mistakes, made by the trial courts. By and large, appeal courts are preoccupied with the application of law, and this points to an extremely important difference between trial courts and appeal courts – their approach to evidence. Trial judges are “triers...

  10. 6 The Decision of the Supreme Court of Canada: Marshall (No. 1)
    (pp. 75-81)

    Mr Marshall’s appeal had been denied by the Nova Scotia Court of Appeal. Again he appealed, this time to the Supreme Court of Canada. The appeal was argued in November 1998. The attorney general of New Brunswick intervened in the appeal, as did two native groups and a group representing Nova Scotia fishermen. Intervenors are entitled to make arguments on issues raised in the appeal, and can argue in support of one side or another. Nova Scotia did not intervene in the case, even though it was entitled to do so.

    Seven judges of the Supreme Court of Canada heard...

  11. 7 Fire on the Water, and Marshall (No. 2)
    (pp. 82-88)

    It is not my purpose to detail the reaction toMarshall (No. 1)in communities in the Maritime Provinces.¹ But that reaction cannot be ignored. The uncertainty, antagonism, violence, and rhetoric that followed the decision are, in part, why it demands such close scrutiny.

    Almost immediately after the release of the decision, in September 1999, native people asserted that their new-found treaty right entitled them to exploit many of the Maritime region’s natural resources, including the lobster fishery. The lobster industry is one of the few remaining viable fisheries sustaining rural coastal communities in the Maritimes. The richest lobster grounds...

  12. 8 Rewriting Nova Scotia History
    (pp. 89-104)

    Appeal Court judges cannot simply change a trial judge’s decision because they don’t happen to like it. They must, first, find a legal error in the lower court’s reasoning. The majority inMarshall (No. 1)suggested that the trial judge had made such an error. This was critical. Without it, the majority could not have overturned the trial judge’s decision. But a close look shows that the trial judge made no error at all.

    Justice Binnie’s analysis, finding that the trial had erred, bears repeating:

    19. … The treaty document of March 10, 1760 sets out a restrictive covenant and...

  13. 9 Judicial Levitation: The Hovering Treaty Right
    (pp. 105-111)

    Donald Marshall, Jr, was a Cape Breton Mi’kmaq. We know definitively that the chief of the Cape Breton Mi’kmaq surrendered at Louisbourg in 1759 and signed a treaty at a ceremony in Halifax in June of 1761. But Justice Binnie said that the “key negotiations” revealing the unwritten treaty right to “hunt, fish and gather and trade for necessaries” were between the Maliseet and Passamaquoddy and the British in Halifax on 11 February 1760. How did the unwritten treaty term get from those Maliseet and Passamaquoddy discussions into the Cape Breton treaty eighteen months later? The answer is found in...

  14. 10 Trade, Treaties, and the Constitution
    (pp. 112-117)

    The Supreme Court of Canada ignored fundamental doctrines of constitutional law inMarshall (No. 1). Put shortly, the majority decision is constitutionally unsound.

    For many years after the British won possession of mainland Nova Scotia in 1710, Nova Scotia was governed by a governor and Council. As I have noted, it was, in effect, a dictatorship. In the 1750s there was considerable pressure to have an elected assembly. British settlers at Halifax, which had been established in 1749, demanded their rights as Englishmen, as did New England Planters, who would flood into Nova Scotia in the late 1750s to take...

  15. 11 Fundamental Laws: The Rights of British Subjects and a “Promenade Down Barrington Street”
    (pp. 118-126)

    The majority inMarshall (No. 1)never referred to the fundamental constitutional doctrine discussed in chapter 10. A further examination of that doctrine reveals serious inadequacies in the court’s reasoning.

    The minority reasons of Justice McLachlin are in sharp disagreement with Justice Binnie. Justice McLachlin pointed out that it was important to distinguish between two things: first, a right to trade under the law applicable to all citizens, and second, a treaty right to trade. Every British subject in Nova Scotia in 1760–61 had a right to trade. When the Mi’kmaq signed treaties “they automatically inherited this general right.”¹...

  16. 12 After the Marshall Decisions: Legal Uncertainty and Government Response
    (pp. 127-131)

    In the months after the release of the Supreme Court of Canada decisions inMarshall (No. 1)andMarshall (No. 2)in the fall of 1999, little was known and less said about the mistakes in these decisions. Only Dr Patterson spoke up to point out some of the historical errors the court had made.¹ In the meantime, throughout the Maritime Provinces, native bands demanded settlement of their “Marshall (No. 1)fishing rights.” After all, while the Supreme Court of Canada had toned down its language inMarshall (No. 2),Marshall (No. 1)had not been overruled. On the contrary,...

  17. 13 Stephen Marshall/Bernard
    (pp. 132-142)

    The issues raised inStephen Marshall/Bernardhave been described above in some detail. They are a very important part of this story because, when these cases reached the Supreme Court of Canada in 2005, they presented that Court with its first opportunity to revisit its decisions inMarshall (No. 1)andMarshall (No. 2). The Court’s view of those cases would govern the outcome in theStephen Marshall/Bernardcases. In the end, the Supreme Court of Canada significantly restricted theMarshall (No. 1)treaty right and rejected the claims to aboriginal title. But there is a good deal to tell...

  18. 14 The Failure of Judicial Activism
    (pp. 143-151)

    There is no pleasure in the criticism advanced here of the decision of the Supreme Court of Canada inMarshall (No. 1).Marshall (No. 1)has come to represent, among native peoples in the Maritime provinces, something of a vindication of native grievances. Whether those grievances are justified and, if so, how they should be addressed, are matters of policy for the public, governments, and native communities to debate and discuss. That topic is far beyond the scope of this book and no opinion on it is expressed here. But the Supreme Court of Canada decision inMarshall (No. 1)...

  19. APPENDIX R. v. Marshall (No. 1)
    (pp. 152-214)
  20. Notes
    (pp. 215-240)
  21. Index
    (pp. 241-244)