Donald Marshall passed away August 9, 2009
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 Donald Marshall has triumphed not only legally, but also in spirit, developing great strength of character over the years.
Marshall is a role model and symbol
Donald Marshall, 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'kmaq peoples
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 Donald 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."
Anne 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."