20 years after the Marshall Inquiry - Nova Scotia Barristers' Society

the SOCIETY RECORD VOLUME 27 | NO.4 | october 2009

NOVA SCOTIA BARRISTERS’ SOCIETY

www. n s bs .or g

Reflections: 20 years after the Marshall Inquiry

Photo by The Canadian Press/Albert Lee

October 2009SCOTIA 1 VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA

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Eric Jorden, M.Sc., P.Eng. Forensic Engineer Consulting Professional Engineer

C ontents VOLUME 27 | NO.4 | october 2009

the Society Record is published four times annually by the Nova Scotia Barristers’ Society Suite 1101-1645 Granville Street Halifax, NS B3J 1X3 (902) 422-1491 Copyright ©2009 Mailed under Canada Post publications agreement number 40069255

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A Note from the Editor

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The President’s View

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A Message from Premier Darrell Dexter

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Briefs

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Society News

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Accolades – a new column from the Gender Equity Committee

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Reflections on the Royal Commission – Q&A with the Hon. T. Alexander Hickman, O.C., 17 – Judge Anne S. Derrick, 18 – George MacDonald QC, 20 – The Hon. Justice Jamie W. S. Saunders, 21 – Bruce H. Wildsmith QC, 22 – Wylie Spicer QC, 24 – Douglas J. Keefe QC, 25



Pullout section — Vol. 34, No. 4 Nova Scotia Law News

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Born of Marshall: the NS Public Prosecution Service – Martin Herschorn QC

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Equity and Diversity in the Legal Profession: the legacy of Donald Marshall Jr. – Emma Halpern, 28 – Catherine Meade, 31 – Marie Paturel, 32 – Heather Chandler, 32

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The IB&M Initiative: Reflections on 20 years – Michelle Williams-Lorde

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Reflections on Recommendation 12 – Naiomi Metallic

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Kudos – Cpl. Craig Marshall Smith, Paula Marshall

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Confronting the remnants of racial prejudice – Parker Donham

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The landmark Marshall treaty case: 10 years later – Dr. Donald M. Julien

45 LIANS – Tips from the Risk & Practice Management Advisor Return undeliverable Canadian addresses to: Publications Administrator, Nova Scotia Barristers’ Society Suite 1101, 1645 Granville Street Halifax NS B3J 1X3 [email protected]

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Summation – Jarvis Googoo

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Editor: Marla Cranston [email protected] Graphic Design: Lisa Neily [email protected]

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NOVA SCOTIA BARRISTERS’ SOCIETY www.nsbs.org October 2009

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Donald Marshall, Jr. spent 20 per cent of his life behind bars— and countless hours in Nova Scotia’s courtrooms—for a crime he didn’t commit. He was 16 when arrested for murder, and his trial took just three days. To uncover what went so wrong in our justice system, the ensuing public inquiry needed three years to complete its work. This December marks 20 years since the Royal Commission filed its final report, sparking changes that still reverberate and evolve. While the mourning continues for Mr. Marshall, who died in August, this fall also marks 10 years since the success of his second court odyssey, the Supreme Court of Canada ruling that reaffirmed centuries-old Mi’kmaq treaty rights to fish for a moderate livelihood. In this special edition, we consider Mr. Marshall’s impact and the lessons learned from both of these major legal turning points.

Marla Cranston Editor, Society Record, Communications Officer

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the president’s

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he criminal justice system failed Donald Marshall, Jr. at virtually every turn, from the arrest and wrongful conviction for murder in 1971 up to and even beyond his acquittal by the Court of Appeal in 1993,” the Royal Commission found. Though Mr. Marshall had access to the justice system, it was a seriously flawed justice system at every level. Obviously, there have been substantial improvements in access to justice since that time. Some examples: creation of Canada’s first independent Public Prosecution Service and the IB&M Initiative at Dalhousie Law School in 1989, an effort to reduce structural and systemic discrimination by increasing representation of Indigenous, Black and Mi’kmaw people in the legal profession and, ultimately, the judiciary; together with improvements in the administration of criminal justice that better recognize personal and cultural attributes and increase pre-trial disclosure. We consistently hear from lawyers in the province of the need to continue to improve upon access to justice. Thus, one of the Society’s strategic priorities is to improve and enhance the legal system and ensure members of the public have access to legal services and the justice system, across the province and regardless of their circumstances. Improving access to the justice system is a cooperative effort among the Department of Justice, the judiciary and the Society. That desire resulted in the creation of the Department of Justice Liaison Committee last year. The Committee’s mandate is to deal with matters of mutual concern and interest, with the issue of “access to justice” at the forefront of discussions. In addition, the Society hosts the semi-annual Joint Meeting with representatives from the judiciary, Department of Justice, Public Prosecution Service and Canadian Bar Association to discuss issues that affect all of us. Access to justice issues are high on the priority list of these meetings as well. Further on the criminal justice side, the Department has spearheaded development of the Justice Partners Forum to address how all those involved in the system can work more effectively.

thus can’t provide the range of services available through the Supreme Court. We are addressing this as a priority. (b) Youth justice — We believe it is incumbent upon those involved in the administration of justice to better understand the concerns of youth, especially at a time when this generation is undergoing rapid change. (c) Justice efficiencies — Our joint work with the Justice Partners group has made it clear there is a need for all who participate in the justice system, from police through to lawyers, judges, correctional officials and others, to have a greater sense of the impact of their programs on the system as a whole. Improving one part of the system, without reflecting on all parts, can have a dramatic effect. We will always be trying to improve access to the justice system, and a cooperative effort among all those involved in the justice system is our best opportunity to find creative ways to move this forward most effectively for all Nova Scotians.

The Society’s current priorities for improving access to justice include the following: (a) Family justice — Although it is desirable that a single, unified Family Division exist throughout the province, it has become apparent that the federal government will not support this. For that reason, within Nova Scotia, we have two separate and distinct family justice systems. The Family Division of the Supreme Court is much better resourced and operates in many ways more effectively for users because it offers a wider variety of services and options. While the Family Court does a good job, it has significantly fewer resources and

Ron Creighton QC President

October 2009

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A Message from Premier Darrell Dexter It’s a pleasure for me to participate in this commemorative publication. First and foremost, all Nova Scotians owe a deep debt of gratitude to the late Donald Marshall Jr. for his quiet struggle to make the province a better place for the Mi’kmaq. His legacy, through the changes that occurred as a result of the Royal Commission and the 1999 Supreme Court decision with respect to Mi’kmaq treaty rights, has forever changed Nova Scotia—for the better. As Nova Scotia’s Premier and Minister of Aboriginal Affairs two decades after the release of the Royal Commission on the Donald Marshall, Jr., Prosecution report, I am mindful of how the recommendations have shaped the work of the provincial government—in particular, government’s relationship with the Mi’kmaq people of Nova Scotia and how all Nova Scotians interact with the provincial justice system. Nova Scotia’s relationship with the Mi’kmaq has changed dramatically in the last two decades. The seeds of this change were sowed within the recommendations of the Royal Commission. The recommendation that called for a “Tripartite forum on Native issues” has evolved into what is now a robust government to government relationship. The cornerstones of this relationship are the Mi’kmaq - Canada - Nova Scotia Tripartite Forum, the Made-in-Nova Scotia negotiation process and a common approach to Consultation. Today, the Forum serves as a positive example of how we can successfully partner to address issues of common concern in a manner based on mutual respect, partnership and commitment. Its three parties are working closely together toward the goal of closing the gap in social and economic circumstances between Aboriginal and non‑Aboriginal people. Members of the Tripartite Forum are dedicated to improving the lives of the Mi’kmaq and recognizing the contributions they bring to the province. The efforts of the Tripartite Forum’s seven working committees have resulted in achievements like increasing physical activity levels of Mi’kmaq youth, encouraging economic development in communities and helping to close the gaps in education and in health.

Its evolution has been the result of a building process—building relationships and new partnerships along with a new way of working together—one that other provinces and territories are watching and beginning to replicate. With the signing of an Umbrella Agreement in 2002, the province began to address long outstanding issues of Aboriginal and treaty rights through the Made-in-Nova Scotia negotiation process and a commitment to establish common consultation processes. We have also seen the emergence of a respectful government to government relationship between the Assembly of Nova Scotia Mi’kmaq Chiefs and the Government of Nova Scotia. The annual joint meeting of the Assembly and the provincial Cabinet is symbolic of this relationship. The Marshall Inquiry also led to the introduction of a communitybased approach to Mi’kmaq justice programs. The Mi’kmaq Legal Support Network (MLSN) was formed through the tripartite relationship between the provincial and federal governments and Mi’kmaq people—and their combined interest in protecting the rights of Aboriginal people in the justice system in order to avoid future wrongful convictions. The MLSN is seen as a national leader in Aboriginal justice and serves as an umbrella organization from which culturally appropriate justice projects and programs are developed and implemented. Two core programs currently offered by the MLSN are the Mi’kmaw Court Worker Program (which helps bridge the gaps and eliminate cultural barriers between the justice system and Mi’kmaw people) and the Mi’kmaw Customary Law Program (a culturally appropriate restorative justice program that facilitates sentencing circles, community placements and referrals to other programs and services). These programs are a direct result of recommendations contained in the Royal Commission. While we are proud of these accomplishments, we recognize that there is more work to be done. The Province will continue to pursue productive discussions among other levels of government, the Mi’kmaq and social, health, economic and justice organizations. We will maintain our focus on encouraging closer relationships that will inevitably lead to a greater mutual understanding and respect— with a common interest of building the future of Nova Scotia. The Hon. Darrell Dexter Premier of Nova Scotia

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BRIEFS Red Robe | Black Tie Symposium and Dinner In cooperation with the Nova Scotia Department of Justice and Dalhousie Law School, the Society co-hosted two events on September 11 to celebrate the appointment of the Honourable Justice Thomas A. Cromwell to the Supreme Court of Canada. An afternoon symposium at the Weldon Law Building examined topics from remedies and evidence to civil procedures. A capacity crowd attended the evening dinner at the Imperial Ballroom in the Lord Nelson Hotel & Suites. Appointed last December, Justice Cromwell is the first Nova Scotia judge to join the nation’s highest bench since 1959, when Justice Roland Almon Ritchie was appointed. Prior to his appointment to the Nova Scotia Court of Appeal in 1997, the Hon. Justice Cromwell practised law in Toronto and taught in Dalhousie University’s Faculty of Law.

The Honourable Justice Thomas A. Cromwell with the gift of a statue carved in his likeness by local artist, Ransford Naugler

Professor William Charles QC Professor Emeritus, Dalhousie Law School

Guests of the Red Robe | Black Tie Dinner

President Ron Creighton QC, the Honourable Lorne Clarke QC, the Honourable Justice Thomas A. Cromwell, the Honourable Constance Glube QC and the Honourable Patrick Healy October 2009

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BRIEFS New judges join courts across Nova Scotia THE HONOURABLE MAYANN E. FRANCIS, O.N.S., Lieutenant Governor of Nova Scotia, congratulates the Hon. Justice Duncan R. Beveridge on his appointment to the Nova Scotia Court of Appeal.

Photo by Michael Creagen, CNS

The June 12 swearing-in ceremony at the Halifax Law Courts was the second one for the Hon. Justice Beveridge – after serving for just over a year on the bench at the Supreme Court of Nova Scotia, he filled the appeal court vacancy upon the Hon. Justice Thomas Cromwell’s departure for Ottawa. A member of the Nova Scotia Bar for almost 30 years, the Hon. Justice Beveridge was a partner in the Halifax law firm of Beveridge, MacPherson and Buckle, where his main area of practice was criminal law.

WHILE SWORN IN AT THE DIGBY COURTHOUSE ON JUNE 29, the Honourable Pierre Léon Muise received a traditional gift of an eagle feather from Mr. Leland Surette, Aboriginal Spiritual Leader, Kespu’kwitk Métis Council.

Photo by Michael Creagen, CNS

Judge Muise was appointed to the Nova Scotia Provincial and Family courts and conducts trials in French as well as English. He is from Tusket, Yarmouth County, and had been serving as a senior Crown Attorney for the Nova Scotia Public Prosecution Service in Yarmouth.

THE HONOURABLE J. MICHAEL MACDONALD, CHIEF Justice of Nova Scotia, welcomes the Hon. Cindy A. Bourgeois on the occasion of her swearing-in to the Nova Scotia Supreme Court. The ceremony took place on September 1 at the Sydney Justice Centre.

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Photo by Vaughan Merchant, Sydney

After called to the Nova Scotia Bar in 1992, Justice Bourgeois became an associate with Hicks LeMoine in Amherst in 1992 and then a managing partner in 2006, when she also began acting as a Small Claims Court Adjudicator. Her main areas of practice included civil litigation including commercial, personal injury, disability and employment disputes.

BRIEFS 2009 Pride Reception During his remarks at the 7th Annual Pride Reception, guest speaker Kenneth J. Upton, Jr. provided fascinating perspective from south of the border. He is Supervising Senior Staff Attorney with Lambda Legal in Texas, the oldest and largest U.S. legal organization committed to achieving full recognition of equality for members of the lesbian, gay, bisexual and transgendered community, and people living with HIV. Mr. Upton was the plaintiff’s co-counsel in Varnum v. Brien, which saw Iowa become the third U.S. state to mandate same-sex marriage last April. The reception was held July 23 in the NSBS Continuing Professional Development Centre to celebrate diversity within the legal profession in Nova Scotia. The annual event is co-hosted by the Society’s Equity Office and the SOGI (Sexual Orientation & Gender Identity) Section of the CBA-NS.

Amy Sakalauskas, SOGI co-chair

Lara Morris (left), partner Renee Hartleib (right) and daughter Sadie, with Kim Vance (centre)

(L-R) Devon, Tony and Jill, guests of the 2009 Pride Reception

Guest, Kenneth J. Upton, Jr., Supervising Senior Staff Attorney, Lambda Legal, Texas October 2009

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BRIEFS Improving the accreditation process for internationally trained lawyers On August 26, the Society held a reception to thank more than 30 lawyers from 22 countries, for taking part in a study addressing barriers and challenges faced by internationally trained lawyers who move to Nova Scotia. Dalhousie law student Nicki Guichon conducted the research for the Equity Office over the summer, in collaboration with the provincial Department of Labour and Workforce Development.

Ali Raja (Pakistan), guest speaker

(L-R) Eric Machum and Maria Calcano (Venezuala) with Jaime Carreno (Mexico)

(L-R) Nicki Guichon, Edmee Folmer (The Netherlands) and Aleta Cromwell

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(L-R) Rose Cadogan (Guyana), Marianela Fuertes (Columbia) and President Ron Creighton QC

BRIEFS Burchells scholarship leads newest recipient to nursing studies Burchell Hayman Parish had another successful year with its Summer Internship and Scholarship program. This year’s recipient was Shanice Bennett. The scholarship and internship is available to qualifying Aboriginal and African Nova Scotian students who are graduating from Citadel High School. During a six-week paid summer internship at the Halifax law firm, students gain valuable experience in an office environment and all aspects of day-to-day business, then receive a scholarship to help out with their post-secondary studies.

Photo by James Ingram

Shanice, whose academic accomplishments, community involvement and clear career vision earned her the internship, got a head start on her first year of tuition at Dalhousie’s School of Nursing.

(L-R) Jason T. Cooke, Shanice R. Bennett and Michael J. Wood, QC

Burchells launched the program in the fall of 2007, and it’s open to students pursuing a wide variety of career paths, not just law. The first recipient, Lindell Smith, used his scholarship to enroll in the Recording Arts Program at the Nova Scotia Community College.

50 years of tax law complexity During the September 25 meeting of Council, Society President Ron Creighton QC presented a 50-year practising certificate to Edwin C. Harris QC, FCA, FCMA, TEP. Hailed as one of Canada’s leading practitioners in corporate, estate and personal tax law, Mr. Harris will also be honoured with a special tribute at the Atlantic Tax Conference dinner on November 6. A graduate of both Dalhousie and Harvard Universities, Mr. Harris is counsel in McInnes Cooper’s Halifax office and is recognized in Best Lawyers in Canada and Lexpert. He has served the accounting profession as well, having been a member of the Institute of Chartered Accountants of Nova Scotia since 1956. Mr. Harris is a Fellow Chartered Accountant, a Fellow Certified Management Accountant and a Member of the Judicial Appointments Advisory Committee for the Tax Court of Canada. A former Dalhousie professor, he currently acts as Chair of the Dalhousie Planned Giving Advisory Board. October 2009

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society

news Admissions & Professional Development

Finance & Administration

The Red Robe | Black Tie Dinner, celebrating the appointment of the Honourable Justice Thomas A. Cromwell to the Supreme Court of Canada, became the launch pad for a busy fall season in Admissions & Professional Development. The September 11 event began with a symposium hosted by Dalhousie Law School that featured topics on remedies, evidence and civil procedure, delivered by experts John P. Merrick QC, the Hon. Justice David Watt and D.A. Rollie Thompson. The Dinner, cosponsored by the Nova Scotia Department of Justice, showcased the esteemed accomplishments of Justice Cromwell’s career as a law professor and judge.

This fall, Council approved a series of regulation changes dealing with members’ Service Nova Scotia Trust Accounts. These changes were introduced to Council in July, following extensive work by the Trust Accounts Committee. At that time, these proposed amendments were also made available to the membership for further comment. Following that consultation, and based on responses received, minor changes were made to the regulations that were ultimately approved by Council on September 25, 2009.

The Continuing Professional Development team is busy planning programming throughout the fall. Stay tuned and mark your calendar for Lunch & Law seminars that will add practical value to your busy practice. Upcoming programs include: • Mi’kmaq Legal Landmarks • Social Networking and the Law • Trust Everyone but Always Cut the Cards: Malingering and Other Varieties of Distortion in Psychological Assessments • Effective Chambers Practice • Family Law: Child Support Guidelines Amendments • Family Law: Spousal Support and the Separated Senior • More to come early in 2010! In addition, the CPD team is organizing the highly popular annual criminal law conference, A Criminal Law Smorgasbord: A Meal Unlike Any Other! Presented in partnership with the Nova Scotia Criminal Lawyers’ Association, it takes place on November 20 (see advertisement on page 14). The event features a special keynote address by Dr. Stuart Grassian, Harvard University professor, forensic psychiatrist, lawyer and world-renowned expert on the effects of segregation and solitary confinement. Did you know that distance bursaries are available for most of our conferences? If your practice is 125 km (one way) from Halifax, you qualify for a 25% reduction in registration fee; a 250 km (one way) commute qualifies you for a 35% reduction. If you have ideas for future programming, or would like to be involved as a presenter or on a planning committee, contact Maureen Farmer, Officer, Professional Development & Events, at [email protected]. See our website for complete programming details at www.nsbs.org/development.php. 12

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Following the work of the Task Force on Council Composition, Council established a Task Force on Committees, with the mandate to consider and make recommendations to Council on the “need, nature and role of committees.” This Task Force has committed to engage in consultation with the membership and provide an interim report to Council in November, then a final report in February 2010. Thank you to members for completing the Annual Member Report. The results of this report serve to inform decision making and assist in identifying trends for Council and Society staff. While there are many statistics that can be generated from the data collected, one of the more telling statistics is the relative aging of the profession. In 2006 (the first year of the Annual Member Report), 24.5 per cent of the practising membership had been called to the Bar more than 27 years prior. In 2009, that group (more than 27 years at the Bar) represents 27.9 per cent of the practising membership. The 2009 Annual Member Report asked a series of questions of those members who had been called to the Bar in the last five years. Those responses will assist in determining what, if any, changes may be appropriate for the Skills Course.

society

news Library & Information Services

Professional Responsibility

With the deadline for mandatory training long passed, many members are now working with, and applying, the new Civil Procedure Rules as part of their daily work. These members will be pleased to learn that the staff of Library & Information Services (L&IS) has developed a number of value-added features for the online Nova Scotia Annotated Civil Procedure Rules (www.nslaw.nsbs.org/nslaw/) to assist members as they wrestle with the issues of new civil practice in Nova Scotia.

The Society’s Trust Audit Program has existed since 1993. It is a key component of the compliance and risk management program in relation to the operation of trust accounts and handling of trust monies by members. Members or firms are selected for audits based on various risk criteria, including the results of a member’s or firm’s most recent annual trust report.

One value-added feature that members will find particularly useful is the table of concordance from the new rules to the old rules. For each new rule listed in the table of concordance, any corresponding old rule is provided, along with a brief note about the subject matter and whether the rule is completely new to members. The table of concordance is available as a PDF document through the online civil procedure rules website via the tab marked “Concordance.” Annotations are yet another feature recently added to the online civil procedure rules. Cases considering the rules are identified and written by members and then added to the online product by the staff of L&IS. Any rule that has an annotation will be followed by a link marked “Annotation,” which leads members to a digest of any relevant case, along with the style of cause, citation and link to the decision on CanLII. Although there are very few annotations currently available in the online version of the rules, more will be added as the body of case law about the rules develops. Another new, value-added feature of the online Nova Scotia Annotated Civil Procedure Rules is amendment tracking information. Any amended rule includes a reference to the date of the issue of the Nova Scotia Royal Gazette in which the amendment appears, along with a direct link to that particular issue of the Royal Gazette online. Although it’s not necessarily new, members should not forget about the usefulness of the comprehensive, linkable index, also available through the online civil procedure rules website via the tab marked “Index.” To learn more about the online Nova Scotia Annotated Civil Procedure Rules, please contact the staff at L&IS by telephoning 1-866-219-1202 (toll-free) or 425-BOOK (2665), or by sending an email to [email protected].

Examples of exceptions reported in annual Trust Account Reports that we consider in determining whether to audit a member: • • • • • • • • •

incomplete trust records and poor trust account book maintenance insufficient records history of bankruptcy or judgment insufficient funds held in the trust account unexplained transfers between client accounts overdrafts not corrected in a timely manner; failure to report and provide reasonable explanation for overdrafts stale dated cheques balances held in trust account for more than one year, where there has been no activity excessive incidences of non-compliance with Trust Account Regulations

Members may also be selected for an audit based on such risk factors as years at the Bar (0-5 and 20+), complaints history or frequent changes in employers. During an audit, any areas of concern or exceptions to the trust account Regulations that are discovered by the auditor are brought to the member’s and/or firm’s immediate attention, with suggestions for correction or rectification. The audit provides our members the opportunity to ask the auditor any questions they may have regarding the Trust Account Procedures and Regulations. Following the audit, a Trust Audit Report is prepared and reviewed by the Director of Professional Responsibility for an assessment of additional monitoring measures or related course of action, if any. The member or firm receives a copy of the report, along with any recommendations for follow-up or corrections to be made for improvement or compliance. The Trust Audit Program is intended to offer members advice and assistance in the appropriate management of their trust accounts. We hope our members appreciate its educational value. To date, feedback received from members and firms audited under this program has been very positive, and we have received no reports from our auditor to suggest that members have been anything but cooperative. October 2009

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A joint program of the Nova Scotia Barristers’ Society & the Nova Scotia Criminal Lawyers’ Association

Conference w a L l a n i m i r 2009 C A Criminal Law Smorgasbord: A Meal Unlike Any Other November 20, 2009 | Best Western Chocolate Lake Hotel, Halifax Morning Keynote: The Honourable Justice David Watt, Ontario Court of Appeal – “R. v. McNeil: The Ontario Experience” Afternoon Keynote: Dr. Stuart Grassian, MD – “The Effects of Segregation and Solitary Confinement on Inmates”

Register now!

The Nova Scotia Criminal Lawyers’ Association and the Nova Scotia Barristers’ Society present A Criminal Law Smorgasbord: A Meal Unlike Any Other. The 2009 Annual Fall Criminal Law Conference will serve up a buffet of fresh information on the most cuttingedge topics!

For more information about this and other CPD offerings, visit www.nsbs.org/development.php

Speakers include: the Honourable Chief Justice Michael MacDonald, the Honourable Chief Justice Joseph Kennedy, the Honourable Chief Judge Patrick Curran, the Honourable Justice David Watt from the Ontario Court of Appeal and a host of senior members of the Nova Scotia Public Prosecution Service and the Nova Scotia Criminal Lawyers’ Association (NSCLA). As an extra treat, don’t miss a special dish served up by Dr. Stuart Grassian, Harvard University professor, forensic psychiatrist, lawyer and world-renowned expert on the effects of segregation and solitary confinement. Dr. Grassian has been a featured expert on prime-time TV news programs throughout North America, including 60 Minutes, The Today Show and 20/20. The Conference: • Advocacy views from the Bench • Impaired driving – are there any defences left? • R. v. McNeil: the Ontario experience • R. v. McNeil: the Nova Scotia experience • Grant, Harrison and Shepherd – where do we go from here? • Unsealing wiretap applications and attacking a warrant • Recent changes to the Criminal Code The newly renovated Best Western Chocolate Lake has offered a room rate of $89 per night. Quote the Nova Scotia Barristers’ Society special room rate. Call 1-877-559-7666 or visit ChocolateLakeHotel.com

C O N T I N U I N G P rofessiona l D eve l opment Scotia Barristers’ Society, 1645 Granville Street, Halifax, NS, B3J 1X3 | 902-422-1491 | www.nsbs.org 14Nova TheThe Society Record 14 Society Record

ACCOLADES

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wenty years have passed since the Royal Commission on the Donald Marshall, Jr., Prosecution indentified the need for the increased presence of Aboriginal and racialized peoples in all aspects of the legal profession. As the Marshall Inquiry documented, the problem is not with Aboriginal peoples or members of racialized communities but with the values, norms and personal prejudices inherent in a different cultural system. The legal needs of Aboriginal or racialized community members at a community level are influenced by a number of factors that require knowledge of local culture and traditions, and contacts within that community. In 1989 the Indigenous Blacks & Mi’kmaq (IB&M) Initiative was established at Dalhousie Law School. It was hoped that by increasing representation from these communities in the legal profession, the effects of systemic discrimination would be greatly reduced. The Initiative’s objective is to facilitate access of African Nova Scotians and Mi’kmaq people into law school and the profession, while also attempting to address issues of racism in legal education and the legal profession. Professor Michelle Williams-Lorde joined Dalhousie Law School in 2004 as Director of the IB&M Initiative and Assistant Professor. She brought with her an incredible background, insight and energy. Born and raised in Nova Scotia, she earned her social work degree at Dalhousie University, her LL.B. at the University of Toronto and her LL.M. at New York University. According to Ms. Williams-Lorde, one of the most rewarding aspects of the IB&M Initiative is recruiting new students for first-year law school. She attempts to meet with each applicant in person or by phone in order to provide support, answer questions and demystify the application process. She also tries to ensure that each applicant and student realizes the importance and value of his or her presence at law school. She never ceases to be amazed at the potential that is uncovered, and impressed by what the graduates go on to achieve. Strategies have been developed to encourage entrance into first-year law school. Short-term recruitment involves targeting students who are ready to apply to law school within a year or so. Contact is made with universities and student advisors to ensure that all students are aware of the Initiative. Free seminars twice a year focus on the ap-

plication process and LSAT preparation.

Catherine Benton

Nova Scotia Legal Aid, Bridgewater

Long-term recruitment involves visiting high schools, organizations and communities on a geographic basis annually. Ms. Williams-Lorde is always sure to have a few current law students accompany her on these visits. The young people immediately identify and connect with the law students as the possibilities of the entry into the legal profession become more real. There is a sense of, “Hey, I can do this too.” Since the IB&M Initiative’s inception, there have been over 110 law graduates. With pride, Professor Williams-Lorde notes that while at law school, these alumni have included three valedictorians, two student law society presidents and six recipients of the David Jones Memorial Award, provided to a third-year student who has been the greatest source of inspiration to his or her classmates. Their contributions have been significant to the legal profession. They have obtained positions as legal counsel to First Nations, provincial and federal departments, legal aid offices and in private firms, while some find careers as academics and policy advisors, or participate in the political arena. Increasing representation from Aboriginal and racialized communities in the legal profession will inevitably aid in ensuring that the justice system is more responsive to and representative of the communities it services. The IB&M Initiative has been an incredible and unprecedented success. In memory of the legacy of Donald Marshall, Jr., it is hoped that the justice system will remember its obligation to encourage and ensure access at all levels. We welcome your submission to Accolades! In each column we will showcase a different lawyer, firm, group or association to recognize how they are effecting change in the profession. Feel free to contact a member of the Gender Equity Committee or Equity Officer Emma Halpern at equity@ nsbs.org to discuss your submission. October 2009

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The Society Record

Reflections on the Royal Commission In the following pages, key players involved in the Marshall Inquiry reflect on the pivotal case that ushered in a new era of justice reform. Excerpts appear below from a recent interview with the Royal Commission’s Chairman, the Hon. T. Alexander Hickman, O.C., retired Chief Justice of the Supreme Court of Newfoundland and Labrador.

Society Record (SR): What was the greatest challenge in leading Canada’s first inquiry to ever look into a wrongful murder conviction?

provinces followed our recommendation, in practice, but have not, as yet, implemented the necessary legislation to ensure that Directors of Public Prosecutions be completely independent of government.

The Hon. Alex Hickman (H): As the Inquiry unfolded, it became very clear that the checks and balances that are supposed to be in place in the criminal justice system to protect accused persons had totally failed Donald Marshall, Jr. As a result, the Commission concluded the entire system needed very careful examination.

SR: Since this Inquiry, Canada has seen more high-profile cases of wrongful conviction. Can we still have faith in our justice system?

SR: One of the most troubling aspects was evidence of a deeply rooted systemic racism. H: Yes, running through it there were signs of a regrettable attitude toward Aboriginal people and in particular towards Donald Marshall, Jr., which set in motion the chain of events that resulted in his wrongful conviction. SR: When the Commission delivered its final report, what did you think of the response to it? H: When the recommendations were released, the public reaction made it apparent that those involved in the criminal justice system—not only in Nova Scotia but throughout Canada—were prepared to make some fairly massive changes in the system, which did happen. For example, our recommendations with respect to disclosure by the Crown were subsequently converted into law by the Supreme Court of Canada, which was a very salutary and significant change. Up to that time, the adversarial approach on the part of Crown counsel had frequently been taken to extreme, often to the detriment of accused persons. SR: Where would you like to see more effort? H: One recommendation implemented in Nova Scotia and some other provinces was that Directors of Public Prosecutions be given statutory independence responsible and answerable only to the legislature of the province (not the Attorney General) and, in the case of federal prosecutors, to the Parliament of Canada. We felt then, and I still feel, the public should be assured that Directors of Public Prosecutions are totally independent from any political interference. Some

H: I hope that Canadians now have confidence in the justice system. One can take some comfort in the fact that when these cases are brought to light, governments have put them under a microscope by means of a public inquiry. SR: Twenty years later, is there anything that especially resonates or stays with you? H: During the Inquiry, I met, on several occasions, with Donald Marshall, Sr., who at that time was Chief of the Mi’kmaq nation. What impressed me was that while he was obviously disappointed with what had occurred to his son, his major concern was that his son, who had suffered immeasurably during 11 years of incarceration, be able to once again take his place in society. That was not an easy thing for Donald Marshall, Jr., to do, but his father was steadfast in his determination that Junior would make a worthy contribution to his people. Donald Marshall, Jr., made a valiant attempt over the ensuing years to do just that and while he did not always succeed, by and large, he made a very significant contribution to the well-being of the Mi’kmaq nation. SR: Were you surprised to see him in the spotlight again 10 years after the Inquiry, emerging as an icon of First Nations treaty rights? H: When Donald Marshall, Jr., appeared before the Commission and gave his evidence, it was clear to me that this young man was facing a very challenging future, because of the treatment he had received at the hands of the criminal justice system. I wondered whether he would be able to meet the challenges as he was a very shy and retiring individual. However, to my delight and admiration, and despite the occasional setback along the way, Donald Marshall, Jr., met the challenge and was a very good citizen of Nova Scotia.

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irony would have it. He had been a teenager: he was now a 36-yearold man, struggling to relocate himself in the world.

I

t is a tradition in Mi’kmaw culture that when a person Provincial Court of Nova Scotia dies, they are not left alone before the body is taken from the home to the funeral. In Donald Marshall Jr.’s case that was particularly appropriate: Junior did not like to be alone. While there may have been a variety of reasons for this, in part it was the effects of prison. That experience, and the wrongful conviction that put him through it, were etched on his soul. However much Junior transcended those terrible events, and the years of struggle that followed his release, he took the pain of them, locked deep and inaccessible within him, to his grave. The 20th anniversary of the Royal Commission of Inquiry must be a time to acknowledge not only the lessons we learned but the price Junior paid for those lessons.

Judge Anne S. Derrick

This anniversary will not come for me until January 26, 2010. That was when I took the Commission’s 297 page Report to the MicMac Friendship Centre in Halifax where Junior was holed up, secluded from the press. He was anxiously waiting to hear what the Commission had to say about the wrongs perpetrated against him. He was wondering whether once again he would be faulted for his wrongful conviction. He had learned through bitter, wrenching experience that he could not trust the justice system. He knew the odds did not favour him. Were all the years of agony, including those in which he watched the grim truth about his case emerge at the Commission’s proceedings, going to have been for nothing? I was not sure that Junior could transcend another devastating blow. By January 1990, I had spent a great deal of time with Junior. I knew intimately how angry and discouraged he was. The burden of his fight for justice wore on him and weighed him down. He was wary and mistrustful. The Commission was reporting after hearing 89 days of evidence, its work spanning a little over three years since its establishment in October 1986. For Junior, the nightmare had started almost 20 years previously on May 28, 1971—his father’s birthday, as 18

The Society Record

Prison equipped Junior for survival in a hostile and dangerous environment. I have a photocopy of his prison photographs— “Inmate 1997”—from 1971 to 1979. There are four of them, mug shots in effect, and they show a teen with some vestiges of adolescent pudginess in his face gradually hardening over time until the lines become chiseled and angular, the boy grown tall into a man. Junior was scarred by his prison experiences, which, as an innocent man and an Aboriginal person, had been all the more painful to endure. The late Jack Stewart, who in 1982 was the Superintendent of the halfway house—the Carlton Centre—to which Junior was released, testified before the Commission that all those years of incarceration deprived Junior of the normal socialization—“the ability to interact with people, the ability to think in ... a critical fashion as opposed to ... a paranoid fashion”—that he needed for life on the street. Junior emerged from 11 years in prison with no institutional supports, supports to which he would have been entitled had he in fact committed the crime for which he was imprisoned and been released on parole. The corrections system had no precedent and no authority to intervene in Junior’s case. The Commission observed that it was “difficult to imagine a more tragic circumstance,” noting the “bitter irony” in the fact that “the system, which had failed Donald Marshall, Jr. on so many occasions in the past, failed him again even as it sent him back to society.” Junior was left to his own devices and whatever his friends, family and professional advocates could do for him. He was described in evidence to the Commission as “very soft spoken. He had a lot of mistrust in the system ... He had a lot of pride and independence, which would have made it difficult for him to say, I can’t manage.” Existing in such a vulnerable state and without resources, Junior had to try and cope with the corrosive effects of the Court of Appeal’s begrudging acquittal in 1983 and the compensation negotiations in 1983-1984, a process described by the Commission in its Report as “not fair.” As one of Junior’s lawyers at the Commission of Inquiry, and the one closest to him personally, I had urged him to believe that this time justice would be achieved. He had a persuasive case to make that it would not. If he was hopeful, it was a tiny flickering hope that threw no light into the darkness and turmoil he was experiencing at the time. He did not really believe the Commission would produce an indictment of the terrible events he had lived for nearly two decades. And so it was a transformative moment, the moment when I went upstairs to the room he was in at the Friendship Centre and told him, “Junior, you’ve been vindicated: Junior, the Report says the justice system failed you at virtually every turn.” I remember that meeting still, so vividly. For the first time since I had met Junior, there was visible relief: it was as though something vast and heavy had been lifted off him. The unexpected had happened and he was in those moments a free man at last. It is that vindication of Junior that I count amongst the most, if not the most, significant accomplishment of the Commission’s work. Sadly, it was not enough to fully heal the deep wounds inflicted on Junior but it enabled him to move forward with his life in a way that was not possible before. It cleared the way for his compensation to be re-evaluated. It gave him the credibility that framed his subsequent

role as an icon in the struggle for Aboriginal justice and treaty rights. It did bring him a measure of peace that had eluded him previously. For Junior, his public existence was not a location where he found any peace. Always reticent and reserved about his public profile, Junior was happiest in private pursuits and dimensions. Yet he was forced to live most of the 27 years following his release from prison as a public figure. His life became a narrative constructed around his wrongful conviction. He was a man almost continually engaged in struggle: from his long fight for justice to the treaty rights case. And then there was his battle to survive the lethal deterioration of his lungs and the treatment that saved his life. It was all played out in the public domain, the occasions of his triumphs and when he stumbled. Junior did, however, take pride in his legacy and recognized the significance of what his sacrifices had achieved. He understood that while the Commission’s finding on racism—that he had been convicted and sent to prison, “in part, at least, because he was a Native person”—had not drilled down deeply into the bedrock of that racism to look at “colonialism, ... wrongful dispossession of Aboriginal lands, ... cultural hegemony, and ... state-sanctioned religious proselytization, as the basis for systemic racial discrimination in the criminal justice system” (Mary Ellen Turpel/Aki-Kwe, “Further Travails of Canada’s Human Rights Record: The Marshall Case,” in Elusive Justice—Beyond the Marshall Inquiry, Fernwood Publishing, 1992), it opened a pathway for dialogue between the Mi’kmaw people and government that remained of vital concern to Junior for the remainder of his life. Immediately after the Marshall Commission’s Report was made

public, the process for re-evaluating Junior’s compensation, animated by Recommendation 8 of the Commission’s Report, began with the establishment of a Royal Commission of Inquiry headed by Justice Gregory Evans. It concluded in July 1990, by which time the Canadian Judicial Council’s inquiry into the conduct of the Court of Appeal judges was underway. For Junior, it all required the summoning of additional energy and reserves. It was now eight years since his release from prison and his life continued to be defined by his wrongful conviction. That he was in time able to assume a fresh identity defending Mi’kmaw treaty rights was a testament to his resilience and the durability of his cultural connections. Junior’s resilience was tested, at times to its limits, during his long struggles for justice. Often he felt as though his life was one long, unremitting fight of one kind or another. I wish somehow it could have been possible for him to put it all to rest but there always seemed to be another challenge to face. Despite these challenges, it was Junior’s body, not his spirit, that gave out in the end. Junior had slipped close to the edge in the past but I, like many others, had not anticipated the end when it finally came. Junior did not dwell in the past but the burden of it remained with him, even though he was ostensibly a free man. It is a burden we must now carry in honour of his memory to ensure that the lessons imparted by his life are not lost or forgotten. And so, when I think of Junior, as I often do, I remember a complicated and compelling man; a man who could have been filled with bitterness and hatred but was not. A man who had much taken away from him and left much behind, who changed those of us who knew him—and our system of justice—for the better.

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October 2009

19

addition, various experts and scholars were retained to provide advice and assistance to the Commissioners who were to make recommendations concerning any changes that should be made to the system. In the course of performing our role as Commission Counsel, we necessarily had contact with Donald Marshall, Jr. He knew who we were, and that we were the Commissioners’ lawyers, but understandably he was cautious about dealing with anyone who he considered to be part of the establishment.

T

he Donald Marshall Inquiry was my first McInnes Cooper exposure to the role of Commission Counsel. It was very difficult for me to adapt and perform this function, given that normally I was a very aggressive adversary for one particular position.

George MacDonald QC

My co-counsel, David Orsborn and Wylie Spicer, and I were given the task of locating and presenting to the Commissioners, in open hearings, all of the evidence that was relevant to the issues being considered by the Commissioners. It was not our task to prove why Donald Marshall, Jr. had been wrongfully convicted; or to prove that the justice system had operated properly. To that end, we were to make certain that all available evidence was before the Commissioners in order that they could make their findings and decide on their recommendations. From time to time it was required that we become aggressive for a short period of time with a particular witness, to make certain the evidence in the possession of that witness was brought out. We attempted, however, to ensure that we did not cross-examine any witness.

I also had frequent opportunity to speak with his father, Donald Marshall, Sr., who at the time was the Grand Chief of the Mi’kmaq Nation. During those encounters, I came to appreciate the wisdom that Chief Marshall possessed. He assisted me in understanding some of the customs and characteristics of the Mi’kmaq. I came to understand that Mi’kmaq can be very reserved people who react differently, for example, to aggressive questioning. Once Chief Marshall explained this to me, I noticed how potential Mi’kmaq witnesses I was questioning had difficulty looking me in the eye. They reacted the same way when being questioned under oath, and I understood how this timid nature could be misinterpreted to be signifying admissions or attempting to evade giving truthful evidence. This type of information was made known to the Commissioners, who took it into account when considering their recommendations. Often, during breaks in the hearings, Chief Marshall and I would speak and he would make some very telling observations about what was taking place. I learned a tremendous amount from this very accomplished man and at the end of the hearings, considered I had a much greater appreciation of the Mi’kmaq people than I had in the past. I had only one encounter with Donald Marshall, Jr.’s mother. Once all evidence had been presented to the Commissioners, the various interested parties were permitted to make closing submissions. Finally I, on behalf of myself and co-counsel, summed up our assessment of the events that led to Donald Marshall, Jr.’s wrongful conviction, his ultimate release from prison and the events that took place thereafter. Here again I attempted not to be an advocate, but given the evidence that had come to light, I am certain that from time to time I suggested, or stated, that the justice system in Nova Scotia had failed Donald Marshall, Jr. When my submission was completed, I had my only encounter with Mrs. Marshall. She approached me, looked in my eyes, touched my arm and said, “Thank you.” About 10 years later, I was speaking to a large group of lawyers and was asked to recall the highlight of my career. I told the story about what Mrs. Marshall said to me.

“...understandably he was cautious about dealing with anyone who he considered to be part of the establishment.”

To fulfill our task it was necessary that we meet with everyone who might have relevant evidence or knowledge. Quite often, those meetings were held in the presence of potential witnesses and their counsel. Usually we would meet with a witness prior to such witness appearing to give evidence before the Commissioners, and would review in considerable detail the topics to be considered, and explain the evidence we understood could be presented through that witness. Given that the Commissioners were asked to determine why Donald Marshall had been wrongfully convicted, it became necessary to delve into the system used in Nova Scotia and determine how it worked. In 20

The Society Record

Several months before his death, I ran into Donald Marshall, Jr. at a dinner event held on behalf of the Special Olympics. The guest speaker was Rubin “Hurricane” Carter. Someone told me that Donald Marshall, Jr. was in the audience to hear the presentation of another well-known wrongfully convicted person. I sought him out. He knew me immediately and we had a very pleasant chat. He said “George, I am in trouble with the law again.” I expressed the view that he would make out fine. The next word I had was that Donald had died. I believe the pending charges against him were withdrawn.

virtually every stage of the case that ensnared Mr. Marshall.

T

hank you for the The Honourable Justice opportunity to offer a modest contribution to Jamie W.S. Saunders Nova Scotia Court of Appeal what I am sure will be a chorus of tributes to the memory of the late Donald Marshall, Jr. Those who knew him well will no doubt speak fondly of the man and his personal odyssey. I leave it to others to describe the jurisprudential legacy left by the “fishing” cases that bear his name. Suffice it to say that in my estimation, the changes in the law sparked by that litigation have added immeasurably to the power, authority, entitlement and respect owed to our First Nations peoples whether in their everyday lives, or sitting as equals at the negotiating table in their efforts to secure lasting, enforceable agreements and reconciliation with the Crown.

•

The determination of journalists and commentators who pressed for an Inquiry and made sure the story stayed on the front page for weeks at a time.

•

The searing wit of Mr. MacKinnon’s cartoons.

•

The bizarre nature of some of the characters who appeared before the Commission.

•

The handful of lawyers and police officers—they know who they are—who ignored self-interest, held true to their oath and consciences, and stood steadfast against authority, superiors or public opinion in order to do the right thing.

•

The mind-numbing flights, drives and months spent in hotel rooms away from my wife and young children.

•

The friendship formed with Jim Maloney, Inquiry investigator and Head of Security, who started me on a lifelong journey in the martial arts.

•

The collective ignorance so many shared concerning the wonderfully rich history and culture of First Nations peoples.

•

The kindness of ushers and ladies’ auxiliary members who baked cookies for us when the hearings first convened in the basement of St. Andrew’s United Church Hall in Sydney.

•

My sense of the abject loneliness Donald Marshall, Jr. surely felt when he was torn from his family and community and thrown into a prison cell, never wavering in maintaining his innocence, and somehow surviving against all odds.

•

The honour, civility, independence and fearlessness of the Bar whose members vigorously represented their clients before the Commission, yet were always able to enjoy a meal, or a cold drink, or a game of ping-pong together afterwards.

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The realization that perjury is anathema to justice and that we all—whatever our role in the justice system—must be relentless in our efforts to root out the liar, and uncover the truth.

•

The resolve of Bruce M. MacIntosh, QC, then President of the Nova Scotia Barristers’ Society, who led the Nova Scotia Bar in its response to the Marshall Inquiry, and whose request of me to establish and chair the Society’s first Race Relations committee, I was proud to accept.

•

The incredulity that must have struck both the Seale and Marshall families upon learning how the lives of their sons, who were friends, came to intersect in Wentworth Park on that fateful night of May 28, 1971, thus changing everything, for all time.

I will restrict my thoughts to some of the most vivid recollections I have from my work with the Royal Commission over the better part of three years. I won’t ever forget: •

The indomitable spirit of Donald Marshall, Jr., the confidence and serenity he displayed, and the respect shown to him by others who always seemed to bow their heads slightly as he passed by.

•

The proud bearing and dignity shown by Donald Marshall, Jr.’s and Sandy Seale’s parents during the vigil they maintained at the Commission hearings.

•

The patience, wisdom and determination of Commissioners Hickman, Poitras and Evans in effectively managing the work of the Inquiry in its various phases, and their dedication in completing such a comprehensive and hugely important task with its attendant report and recommendations in a field that was largely uncharted and unprecedented.

The spirit of cooperation among participants who worked so hard to obtain generous, fair and lasting compensation for Mr. Marshall, and secure the wholesale adoption and implementation of the report and recommendations that bear his name.

•

The inclusion and diversity we now see in the faces of those who attend our law schools or who serve the public as lawyers, teachers, police officers, politicians, corrections officials or members of the judiciary.

•

•

The bright light focused on practically every aspect of the justice system, which revealed weaknesses and missteps at

October 2009

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I suspect that in the minds of most Canadians, the name Donald Marshall, Jr. has come to be synonymous with wrongful conviction. In many ways, his ordeal and the Royal Commission that bears his name led the way in establishing the standard by which such cases ought to be investigated, heard and resolved. Sadly, we have come to know that Mr. Marshall’s saga was not the only miscarriage of justice in Canada. There have and will be others. We cannot possibly guarantee that innocent people will never be charged, tried, convicted and imprisoned in our country. The system is, after all, one that engages human beings who may occasionally, despite the best of training and intentions, make mistakes. It seems to me that our job, our responsibility, is to ensure that the name Donald Marshall, Jr. resonates in each of our souls as a kind of check and constant reminder of the inherent frailty in this thing we call justice, so that we are resolute in doing our best to ensure the mistakes that led to Mr. Marshall’s odyssey do not happen on our watch. I have no doubt that Mr. Marshall’s legacy has left a lasting imprint on Canada’s justice system at practically every level. For that, he and his family, and those who worked so tirelessly to restore his good name, should feel justly proud. By the same token, I share the sorrow felt by so many others in recalling the years stolen from Donald Marshall, Jr., the impact that his wrongful imprisonment must have had upon his health, and the resulting tragic shortening of a good and decent life. The Hon. Jamie Saunders together with Darrel Pink acted as counsel to the Attorney General of Nova Scotia, and the Department of Attorney General, during all phases of the Royal Commission.

T

he Royal Commission on the Barrister & Solicitor, Barss Corner Donald Marshall, Jr., Prosecution found “that the criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and conviction in 1971 up to—and even beyond—his acquittal by the Supreme Court of Nova Scotia (Appeal Division) in 1983.” The criminal system is made up of a series of checks and balances, all to ensure that the innocent are not wrongfully convicted. The checks and balances are all the more important when the charge is murder and the consequences of a finding of guilt so extreme. Yet, for all the institutional checks and balances, the system is operated by people.

Bruce H. Wildsmith QC

Photo by Halifax Chronicle Herald/The Canadian Press

Why did so many human beings fail Marshall? Why did so many people otherwise considered competent demonstrate a lack of competence in this case? The Commissioners in their Report found that the reason in part was because Marshall was an Indian: “[T]he conclusion [is] inescapable that Donald Marshall, Jr. was convicted and sent to prison, in part at least, because he was a Native person.” Many of those who let Marshall and the justice system down were, or had been before becoming judges, members of the legal profession. My purpose in this short piece is to illustrate some of the ways in which those legally trained with duties to the justice system failed to act appropriately. Perhaps with greater insight into those human errors, we who are part of the justice system will carry out our roles with greater care.

Donald Marshall Jr., receives an embrace from his mother Caroline Marshall inside the Sydney Justice Centre on April 13, 2006 in Sydney, NS.

22

The Society Record

The Royal Commission found fault at trial with the Crown prosecutor, defence counsel and the trial judge. The lynchpins to the evidence against Marshall were two alleged eyewitness accounts from juveniles: Maynard Chant (a 14-year-old) and John Pratico (aged 16). They both eventually gave statements that they saw Marshall stab Sandy Seale. But they had given prior inconsistent statements. The prosecutor, in view

of the conflicting statements, should himself have interviewed such key witnesses separately, before trial. And he should have disclosed to the defence the contents of prior inconsistent statements. Defence counsel failed to provide adequate professional representation because they did not arrange for any independent investigation, did not interview Crown witnesses prior to the trial and did not seek disclosure. The defence were also aware of prior statements from the key child witnesses but did not request the prior statements. One particularly staggering failure of the defence was told to the Royal Commission: During the trial and before the case went to the jury, a group of teenagers read in the newspaper the account of evidence from Pratico. They knew that Pratico could not have been an eyewitness to the stabbing, as Pratico had been with them at the critical time that night. One of them phoned defence counsel to explain that Pratico had lied. Marshall’s lead lawyer cut the caller off, saying “You’re too late.” The defence did not follow up this lead and did not call these potential witnesses to discredit Pratico.

reference under the Criminal Code was made to the Court of Appeal. The Royal Commission was very critical of the Appeal Court: It should not have blamed Marshall for his wrongful conviction and should not have vindicated the justice system from any suggestion of failure. The Commission called the conclusion that Marshall was to blame “a serious and fundamental error,” and concluded that the Court should not have in effect “convicted” Marshall of a robbery when he was never so charged, the Court should not have stated Marshall committed perjury, and the Court should not have selectively used the evidence before it as well as information not admitted into evidence to reach its conclusions. Further, one member of the appeal panel hearing the reference should not have sat as he had been the Attorney General at the time of the original conviction and appeal. Perhaps most significantly, the Commission thought the Court’s decision “amounted to a defence of the justice system at Marshall’s expense”—including the now infamous comment: “Any miscarriage of justice is, however, more apparent than real”—notwithstanding overwhelming evidence to the contrary. The Court’s gratuitous comments created difficulties for Marshall both in terms of his negotiation of compensation and public acceptance of his acquittal.

“The Court’s gratuitous comments created difficulties for Marshall both in terms of his negotiation of compensation and public acceptance of his acquittal.”

The trial judge, the Royal Commission concluded, through the cumulative effect of incorrect rulings, denied Marshall a fair trial. One particular misinterpretation of the Canada Evidence Act cost Marshall an acquittal. As noted above, John Pratico had given a statement to police saying that he had witnessed Marshall stab Sandy Seale. But in the corridor while waiting to testify, Pratico of his own volition approached Marshall’s father and told him that he had lied when making his first statement—he had not witnessed the killing. Marshall senior told this to defence counsel, who then arranged for the Crown, the police and the High Sheriff to interview Pratico in the Barristers’ lounge. Everyone advised Pratico to tell the truth when he took the witness stand and not worry about perjury. When Pratico took the stand, the Crown attempted to introduce evidence of what Pratico had said outside the courtroom. The trial judge refused to permit this. Subsequently, during cross-examination, the defence did bring out what Pratico had said outside the courtroom, but the Crown objected and the judge refused to permit a thorough cross-examination on the point. The rulings by the trial judge were wrong—if a complete crossexamination had been permitted, the Royal Commission concluded, no jury would have convicted Marshall. Marshall appealed his conviction. Defence and Crown counsel on appeal, as well as the Court of Appeal itself, all committed error. Defence counsel failed to argue that fundamental errors of law occurred during the trial—this represented, the Royal Commission said, “a serious breach of the standard of professional conduct expected.” The Attorney General’s department inappropriately allowed the appeal to be handled by a junior lawyer. That Crown lawyer should have raised the erroneous rulings of the trial judge, but did not. And the Court of Appeal should have reviewed the complete trial record to ensure that all relevant issues were argued—if the Court had done so, “the errors by the trial judge were so fundamental that a new trial should have been the inevitable result.”

Lastly, but not least, the Royal Commission took aim at the Department of the Attorney General—Marshall “was not treated properly” by the Department. The Deputy Attorney General on the Reference Case should not have tried to persuade Crown counsel to argue against an acquittal, and Crown counsel himself should not have argued that the criminal justice was not in any way responsible for Marshall’s wrongful conviction when he knew to the contrary. The Deputy Attorney General was also singled out for failing to take any positive action to determine why Marshall had been wrongfully convicted, failing to do any research before advising the Attorney General not to appoint a public inquiry, and failing to review any of the relevant documents before refusing a request by Marshall’s counsel under the Freedom of Information Act. When it came to compensation for Marshall, the Deputy Attorney General should have considered whether it was appropriate for the Province to approach the issue simply in terms of achieving the best possible financial deal for the Province, rather than what was fair to Marshall. The above-noted actions or failures by lawyers and judges seem incredible in their totality. That is not to say other actors in the justice system—those responsible for other checks and balances—were not at fault. The Sydney Police in the original investigation and the RCMP at various stages of reinvestigation all failed Marshall and the justice system. But lawyer and judges could and should have ensured fair treatment of Marshall. Could the same thing happen again today? Do Mi’kmaq in Nova Scotia get fair and unbiased treatment? Do the innocent get convicted? The story of Donald Marshall’s wrongful conviction and his 11 years in prison serve as a reminder that all who participate in the justice system must carry out their duties conscientiously, and with a conscience.

Eventually, years later, after a reinvestigation of the case in 1982, a October 2009

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involving Junior Marshall. It was never our intention to inquire into the reasons for the decision written by the Court. We were interested in establishing the material that was before the Court as part of the “record.” There was some ambiguity in the information in the possession of the inquiry as to what that “record” constituted. Not a step to be taken lightly and, indeed, only taken after obtaining legal opinions on the point to satisfy ourselves that the inquiries to be made of the judges were appropriate. One of the most troubling aspects of my experience during the Inquiry was the reaction of some of my lawyer colleagues to our request. There were not a few lawyers who expressed the view that we had no right to take such a step and what an affront our behaviour was to the judiciary. The irony of that reaction from some of my colleagues was that, if anything, it reinforced the Commission’s determination to do our best to get to the heart of what had gone wrong in the Marshall case.

T

he Marshall Inquiry was a multi-faceted undertaking. McInnes Cooper Most prominent in the public view were the public hearings into the events giving rise to the murder of Sandy Seale. Unbeknownst to most people, there was also a very significant research component to the Inquiry. Much of the effort of the hearings and of the research were directed to exploring how such a grievous mistake could have taken place in a justice system that we had thought was designed to prevent such happenings.

Wylie Spicer QC

The Marshall Inquiry Report was the first in Canada to publicly and aggressively indicate flaws in the administration of justice. Junior Marshall was Aboriginal and, as a consequence, was marginalized by the justice system.

As lawyers working for the Marshall Inquiry, we always considered it our responsibility as counsel to investigate every avenue that might be of benefit to the Commission in getting to the core of what had happened to Junior Marshall. The Marshall Inquiry touched many nerves as we worked on our mandate. Not surprisingly, one of the more sensitive nerves was struck when the Inquiry asked to speak to the judges of the Appeal Court who had rendered the decision The Society Record

The criminal justice system does its best to treat its participants with respect. As the Marshall Inquiry pointed out, however, it is not always that easy to ignore the prejudices and attitudes that have developed over time towards the marginalized and powerless in our society. These prejudices are what is called “systemic.” To me, that means that they are part of the system in which we live and difficult to consciously put aside. The Marshall Inquiry investigations made it clear that this systemic marginalization affected all branches of the administration of criminal justice. It is not too hard to identify someone who is a blatant racist but it is much more difficult to identify the unsaid and unseen factors that make a society racist. I learned from the investigations of the Marshall Inquiry that all of us must do the best we can to not allow these unsaid and unseen factors to affect us in our privileged positions in the justice system.

“The Inquiry was a wake-up call that was telling all of us in the justice system that everyone who gets involved in the system needs to be treated with an equal amount of respect. ”

As many of the other wrongful conviction cases in subsequent years demonstrated, marginalization of the alleged offender is a theme running through the piece. To put it another way, Junior Marshall was powerless. The hearings and the investigations of the Marshall Inquiry demonstrated that the justice system was not well suited to properly and fairly deal with the issues of the powerless and marginalized people in our society.

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Twenty years later, as I’m being asked to reflect on the Marshall Inquiry, I wonder how far we have come as a society in dealing with those of our citizens who have been marginalized. The Marshall Inquiry demonstrated that a young Aboriginal person did not get a fair shake from the criminal justice system. The Inquiry made recommendations to try and change the institutional reasons why that injustice had occurred. The Inquiry was a wake-up call that was telling all of us in the justice system that everyone who gets involved in the system needs to be treated with an equal amount of respect. Unfortunately, many individuals come before the criminal justice system from a life of poverty, marginalization and broken families. Being involved in the criminal justice system is a result and not a cause.

Public inquiries are an aid to the political process and are political, in the best and broadest sense of the word. It was called the Royal Commission on the Donald Marshall, Jr., Prosecution (and it initially tried to confine itself to that) but it was the point of ignition for a broad examination by Nova Scotians of all their justices: legal, social and political; and the institutions that need to underpin them in a democracy. For me, it was a great time to be newly involved in justice policy and on the sunny side of 40. It was like standing at the North Pole—there was no doubt you had to get moving and no matter which way you went the climate was bound to improve. By 1989, new approaches to the issues the Commission was considering were suddenly possible. The government and Mi’kmaq negotiated a resolution to long-running disputes over hunting and established a tripartite forum work on other issues. The Public Prosecution Service was created to remove the possibility of covert political influence in prosecutions. The Court Structure Task Force, chaired by Bill Charles, former dean of the Law School, was set up and led to a major reorganization of the courts in 1992. Even the amendment of the Human Rights Act to prohibit discrimination based on gender orientation can be seen as a product of the Marshall zeitgeist.

I

n 1983, it seemed like Donald Douglas Keefe QC Marshall, Jr. plucked a thread Barrister and Solicitor and the whole fabric of justice and politics unraveled. The people involved in the administration of justice were perceived as unenlightened, incompetent and possibly evil. That doesn’t explain anything. People act according to their context. The people I knew in the administration of justice at the time were about the same as the people in today’s system—some of them are the same people. And if there was no great appetite for systemic improvement, it was a failure of imagination and belief in possibilities and not malign intent. So what was the problem?

If the words “justice” and “reform” could be placed anywhere in the opening sentence of a legislative proposal, there was an appetite for it. In February 1990, when Attorney General Tom McInnis delivered his response to the Commission’s report—the most dramatic news conference of my 30 years in government—it was public affirmation of a process that, in a three-year span, touched every part of the justice system and the political life of the province. It appeared this happy state could go on indefinitely but, while driving to the office early on Saturday May 9, 1992, I heard there had been an explosion in the Westray Mine. By the afternoon, justice reform was no longer uppermost in anyone’s mind, including mine.

“It was like standing at the North Pole—there was no doubt you had to get moving and no matter which way you went the climate was bound to improve.”

Donald Rumsfeld famously worried most about the unknown unknowns. As with so many things he was wrong. The greater danger is the unknown knowns; the shared implicit assumptions that trip us because we can’t see them. Or as Einstein said: “I don’t know who discovered water but it probably wasn’t a fish.” The key problem for justice in Nova Scotia was not villainy but stagnation, and the overlong shadow of our history. In 1986, when the Royal Commission was appointed, the courts and justice system were still organized on a county and municipal basis. Cabinet appointed Crown prosecutors and court officials (though most were in fact politically neutral civil servants). There was no public judicial appointment process. The aspirations of the Mi’kmaq were met with rigid assertions of equality before the law regardless of circumstance or history. And African Nova Scotians felt anything but equal before the law. Our legal and political systems were not prepared to deal appropriately with a wrongful conviction, let alone one in which race played a part.

That Monday night as I prepared to draft the Westray Commission’s terms of reference, I read the reports of the two royal commissions into the Springhill disasters of 1956 and 1958 in which 107 miners died. It took the Springhill commissions a few months each to determine what happened. I may have considered whether, in our zeal to purge legal processes of political influence, we created a culture that imposed too much legal influence on political processes. Somehow I doubt I thought about it that night but I wondered about it later as it took more than five years and the imprimatur of the Supreme Court of Canada before the Westray Commission could complete its report. Happily I was able to serve just long enough to see the Nunn Inquiry get its job done and done well in about a year. As a senior civil servant with the provincial Department of Justice— including seven years as Deputy Minister—Doug Keefe QC was involved in three major public inquiries, including the Marshall, Westray and Nunn Commissions, as well as the province’s response to the Swissair Flight 111 tragedy. He is now a private consultant and lawyer. October 2009

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BORN OF MARSHALL: The Nova Scotia Public Prosecution Service Today we have 90 Crown Attorneys in 20 offices across the province who well remember the Marshall Commission and take very seriously the principle of prosecutorial independence. They are guided by a carefully considered policy on prosecutorial discretion. Each and every one of the some 45,000 criminal charges laid in Nova Scotia each year undergo the same scrutiny with regard to strength of evidence.

T

he Nova Scotia Public Prosecution Service Director of Public Prosecutions is perhaps one of the more significant outcomes of the Royal Commission on the Donald Marshall, Jr., Prosecution. Until then, criminal prosecutions were a function of the Nova Scotia Department of Justice and there was little transparency in those cases in which the Attorney General of the day became directly involved in guiding the course of an individual prosecution.

Martin Herschorn QC

But with Recommendation #35, the Marshall Commission changed all of that. That recommendation set in motion the creation of the first statutorily-based independent prosecution service in Canada. That means all prosecutions within the jurisdiction of the Attorney General of Nova Scotia are the responsibility of the Director of Public Prosecutions. These prosecutions are conducted by the Crown Attorneys of the Public Prosecution Service independently of the Attorney General. In 1989, the Marshall Commission said it was not appropriate for the Attorney General to become involved in day-to-day decisions affecting individual cases. But the Commission also recognized there may be exceptional circumstances in cases that raise public interest issues. So, when matters of public interest arise with significant implications for the general public, our model allows for the Attorney General to issue written instructions to the Director of Public Prosecutions. These instructions are binding and must be published. It isn’t often that the Attorney General exercises this right. One of the few times was when the Honourable Michael Baker issued instructions on home invasions in 2000. Since our independent Public Prosecution Service was established in 1990, it has proven its effectiveness and our model has also been adopted by the Governments of Canada and Quebec.

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The Society Record

The Crown Attorney will assess the case to determine if there is a realistic prospect of conviction. If so, the next step is to examine an exhaustive series of public interest factors to determine whether it is in the public interest to proceed. If the evidence suggests a realistic prospect of conviction and it is in the public interest to proceed, then, and only then, will the Crown Attorney go ahead with a prosecution. It’s well worth noting that within this policy are clearly stated factors that are to be excluded from consideration in determining whether the public interest is best served by a prosecution. Recalling the Marshall Inquiry finding that Donald Marshall, Jr.’s Mi’kmaq status was a factor in his wrongful conviction, one of the factors to be excluded is the alleged offender’s race, sex, national origin or political associations. To quote, in part, our policy on the decision to prosecute: Crown Attorneys are reminded that they have an important role to play in providing a level of independent review between police investigations and any prosecution that may flow from those investigations. This has been emphasized in the Marshall Inquiry. Accordingly, Crown Attorneys have a duty to conduct a careful principled review of every prosecution brief to ensure that the established threshold is met. The assessment by a prosecutor of both the strength of a case and the public interest must be carried out with integrity and a high level of professionalism. Courage is also required: the appropriate decision may not be the decision desired by investigators or interested parties. Prosecutors must continuously bear in mind their proper relationship to the police, witnesses, the courts and the general public as they make decisions. The Marshall Inquiry had significant observations with regard to disclosure. It found that the Crown’s failure to disclose information to Marshall’s counsel contributed to his wrongful conviction. Since Marshall, Crown disclosure practices have undergone radical change. Crown Attorneys now must follow a detailed policy on disclosure. The Crown has a duty to make full and timely disclosure to the defence of all relevant information known to the investigator and the Crown Attorney. The chief purpose of such disclosure is to help guarantee the accused his or her constitutional rights to a fair

trial and to make a full defence. If Crown Attorneys are unclear on any aspect of disclosure they need only consult the policy for a list of what must be disclosed, the timing of disclosure and what to do in exceptional circumstances.

improving and perfecting our processes and we may have a few more on the journey of continuous improvement. But we are light years ahead of where we were on May 28, 1971, the day Sandy Seale died and Donald Marshall began to write a new chapter in Nova Scotia legal history.

The wrongful conviction of Donald Marshall and others across Canada has spurred the Public Prosecution Service to make a significant investment in the development of comprehensive prosecutorial policy and best practices aimed at avoiding any further wrongful convictions. All of our policies are posted on our website for anyone to read at www.gov.ns.ca/pps/.

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The Marshall experience has also been the catalyst for significant investment in Crown Attorney training. When a lawyer chooses a career in criminal prosecutions he or she is choosing a path of continuous legal training and professional development. Our Crown Attorneys must attend our yearly educational conferences and are often sent to outside conferences, seminars and training sessions on a wide variety of criminal law topics including those relevant to wrongful conviction. For example, at our recent fall educational conference, Crown Attorneys attended a lengthy session on the disclosure of police discipline records as per the recent McNeil decision out of the Supreme Court of Canada. Our efforts to improve and perfect our processes continue. All Nova Scotians, no matter what their background or situation, must have access to justice. Among the initiatives in that vein are our increasing ability to provide French language prosecutions, our participation in the province’s much anticipated mental health court and the sharpening of specialized prosecutorial abilities in such areas as cybercrime, sexual assaults and domestic violence.

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902-453-6600 25/05/09 27 3:46 PM October 2009

Equity and diversity in the legal profession: The legacy of Donald Marshall Junior

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n August 6, 2009, Donald Marshall Junior, son of the late Grand Chief of the Mi’kmaq Nation, passed away in Sydney, Nova Scotia. His death has inspired many Canadians to reflect on his legacy, especially the profound and lasting impact his experience and his actions have had on the justice system and the lives of a great number of individuals in Nova Scotia, Canada and beyond.

Emma Halpern

In the weeks following his passing, Mr. Marshall has been referred to as an icon, influential figure and activist. Although these terms are certainly accurate, they do not do justice to the depth of sacrifice he made nor to his effect on the justice system and the struggle to entrench the rights of Aboriginal people in Nova Scotia. NSBS Equity Officer

In a tragic twist of fate, Marshall sacrificed 11 years of his life so that the discriminatory attitudes present at all levels of the justice system could be brought to light and addressed. He spent much of his youth in prison after being wrongfully convicted of murder in the 1971 stabbing death of Sandy Seale in Sydney. He was released in 1982, acquitted in 1983 and finally exonerated in 1989, following the release of the report of the Royal Commission on the Donald Marshall, Jr., Prosecution into the wrongful murder conviction (hereinafter the Marshall Commission Report). The inquiry concluded that Marshall was a victim of racism and incompetence and that he was failed by the Nova Scotia legal system at every turn.1 Now, 20 years since the Commission released this landmark report, what—if anything—has changed? 1 It is also important to note that a number of years later, while out eel fishing at Pomquet Harbour near Cape Breton Island, he found himself accidentally embroiled in a court case that would again require him to make a significant personal sacrifice so that the Mi’kmaq and Maliseet people in Atlantic Canada would have the right to earn a moderate livelihood from hunting, fishing and gathering. After a lengthy court battle, in 1999 the Supreme Court of Canada upheld a centuries-old treaty between the Mi’kmaq people and the British Crown in acquitting Marshall of illegal fishing.

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The Society Record

It is important to mention at the outset that given the length (82 recommendations, seven volumes, over 1,000 pages) and depth of the Marshall Commission Report and the numerous and extensive changes to the justice system that were brought about as a result of this document, it is virtually impossible to even come close to addressing every issue in a short article. I have, therefore, selected a few key points that pertain directly to my role as Equity Officer and the lens through which I view the legal profession, omitting consideration of many other aspects that are no less significant for Nova Scotia. At the Nova Scotia Barristers’ Society, the creation of both the Equity Office and the Race Relations Committee, as a direct result of the Marshall Commission Report, has helped the profession better understand the impact of racism and discrimination and has been a strong force in encouraging the implementation of policies and programming dedicated to furthering equality within the profession. Other noteworthy changes in the area of equity within the legal profession that have been supported by recommendations from the Marshall Commission Report are the creation of the Indigenous Blacks & Mi’kmaq Initiative at Dalhousie Law School2, the Mi’kmaq Legal Support Network3, and the introduction of diversity as a criterion in hiring policies at all levels of the justice system, from policing to the judiciary. These programs and policies are important first steps in demonstrating a commitment to equity and diversity in regard to legal education and legal support programs, and in acknowledging the importance of diversity within the legal profession. Unfortunately, however, despite these clear steps forward, we still have a long way to go before we can comfortably say that the racism and discrimination highlighted in the Marshall Commission Report have been sufficiently addressed. It is still the case that the experience of many African Nova Scotian and Mi’kmaq people has illustrated to them that the justice system is unaware of cultural differences, and remains dominated by white European-descended people whose values and norms, notwithstanding the policies and programming encouraging diversity, unwittingly give rise to discriminatory practices and decision making. 2 The IB&M Initiative was created to reduce structural and systemic discrimination by increasing the representation of Indigenous Black and Mi’kmaq people in the justice system. 3 MLSN exists to ensure fair, culturally appropriate treatment of Mi’kmaq and Aboriginal people within the justice system.

Photo by Winnipeg Free Press/Canadian Press/Ken Gigliotti

Donald Marshall is shown in Winnipeg, September 15, 2000, where he was speaking at a University of Winnipeg conference on the politics of imprisonment. October 2009

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Within the legal profession itself, despite our best efforts at implementing policies and programs to address the concerns raised in the Marshall Commission Report, we are still not seeing the type of progress that one might have expected: • • • •

In 2009, approximately 90 per cent of racialized and Aboriginal law clerks did not get hired back compared to approximately 40 per cent of their white counterparts. In the 20 years since the Commission recommendations, only one African Nova Scotian judge has been appointed,4 and there have been no Mi’kmaq judicial appointments. A Mi’kmaq lawyer was elected to NSBS Council this year, for the first time. Although numerous Mi’kmaq law graduates have entered the profession over the past 20 years, a significant number of these individuals left the profession in their first five years of practice. Currently there is only one Mi’kmaq lawyer in private practice in Nova Scotia.

All of the foregoing information raises the obvious question: why? Why are the programs and policies not sufficient? Why does there appear to be a gap between what is on paper and what is happening on the ground?

work in the profession, it is not enough to have diversity characteristics as a factor to be considered only when all other qualifications are equal. Rather, a diversity of backgrounds and life experiences should be a key component of all hiring and appointment processes. At the same time as we are increasing diversity within the profession, we also have a responsibility to ensure that all lawyers and legal professionals are culturally competent5. In order to be truly culturally competent, it is necessary for individuals to understand the dominant culture, including their own social position and world view, and to also be aware of the cultural and normative differences of perspective held by other individuals and communities. These range from new Canadians and those living with disability to youth media culture, Aboriginal community perspectives and much more.6 In keeping with Recommendation 13 of the Marshall Commission Report7, individuals working in the justice system need to understand and be able to communicate effectively with individuals from other cultural communities and backgrounds. Without this type of education, discriminatory perspectives and views both conscious and not, are propagated.

A lawyer has a duty to respect the human dignity and worth of all persons and to treat all persons with equality and without discrimination.

Finally, it is crucial to look beyond the boundaries of the Marshall Commission Report and its recommendations. Although this report was groundbreaking Using the Marshall Commission in its condemnation of racism – Rule 24 of the NSBS Legal Ethics Handbook Report and its recommendations and discrimination in the legal as a starting place, I would say profession, it did not go far there are two primary areas that have not been adequately addressed enough in recognizing that the legal system in its current form may not and therefore play a major role in contributing to this gap: a lack of always meets the needs of all people. The norms and values implicit in diversity within the profession, and insufficient education of the various the justice system are rooted in European—especially British—history people involved in the justice system. and practice. In fact, many cultures in Canada and around the world do not use rule-based, adversarial forms of law and justice. Unlike the Although there has clearly been a vast improvement over the past dominant Canadian justice system, Mi’kmaq justice is consensus driven two decades, in large part because of the crucial and valiant efforts and based on customary and interactional law.8 For a Mi’kmaq young of the IB&M Initiative directors, we still do not have a particularly person, familiar with solving conflict through community consensus, diverse legal profession and individuals from diverse backgrounds do the Canadian courtroom could be a very isolating, intimidating and not, for the most part, hold important decision-making roles within oppressive place. the profession. Therefore the decisions being made, from hiring to electing representatives to appointing judges to sentencing offenders, Despite the recommendation for a Native Criminal Court9, the are generally made by people with relatively similar backgrounds report does not adequately acknowledge the existence of differing whose world views are reflective of the types of experiences these 5 Cultural competence refers to an ability to interact effectively with backgrounds afford. Ultimately, we cannot escape our experiences and the world views that are born from those experiences. Our past experiences play a major role in how we view the world and therefore impact our decision making. It follows, then, that a crucial aspect of building an equitable legal profession is ensuring that decision-making roles are filled by people with a diversity of life experiences and viewpoints. If we are truly going to see a fundamental shift in the way in which racialized and Aboriginal people experience justice in this province, we need to see them occupying some of the influential and senior roles that affect our justice system. In making decisions about who becomes a judge or who gets hired to 4 Judge Jean Whalen was appointed in 2009. Judge Corrine Sparks, who is African Nova Scotian, was appointed in 1987, prior to the Marshall Commission Report recommendations.

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The Society Record

people of different cultures and comprises four components: (a) awareness of one’s own cultural worldview, (b) an open attitude towards cultural differences, (c) knowledge of different cultural practices and worldviews and (d) crosscultural skills. 6 The duty to be culturally competent is reflected in Rule 24 of the Nova Scotia Barristers’ Society Legal Ethics Handbook: “A lawyer has a duty to respect the human dignity and worth of all persons and to treat all persons with equality and without discrimination.” 7 Royal Commission on the Donald Marshall Jr., Prosecution, Commissioners’ Report, Vol. 1, Recommendation 13: We recommend that the Dalhousie Law School, the Nova Scotia Barristers’ Society and the Judicial Councils support courses and programs dealing with legal issues facing minorities and encourage sensitivity to minority concerns for law students, lawyers and judges. 8 Denny, Kjikeptin Alex, 1991 “Beyond the Marshall Inquiry: An Alternative Mi’kmaq Worldview and Justice System” 9 Royal Commission on the Donald Marshall Jr., Prosecution, Commissioners’ Report (1989), Vol 1, Recommendation 20, p. 168

legal systems and the fact that, for many Canadians, the system as it stands cannot and will not offer true justice. Perhaps now, 20 years after the Marshall Commission Report, it is time to examine not only the gaps in the system but also the foundational norms and values on which it is based. How different would Marshall’s experience have been if our court system promoted consensus-based dialogue that included members of our communities and respected Aboriginal forms of justice?

We recommend that the Dalhousie Law School, the Nova Scotia Barristers’ Society and the Judicial Councils support courses and programs dealing with legal issues facing minorities and encourage sensitivity to minority concerns for law students, lawyers and judges.

Catherine Meade

In January of 1997, I became the Society’s first Equity Officer, the first in such a role in Canada. I left to attend law school at the University of Ottawa in 1999. The Equity Officer position was created as a result of the Marshall Commission. Looking back at what has transpired from an equity and diversity perspective in the Society and our legal profession in the past decade, I have mixed feelings of excitement and disappointment.

Legal Counsel Bell Aliant Regional Communications

The initiatives led by the Equity Office and the committees it supports have been very exciting for me. The Pride Reception, courthouse portraits, preCall celebration for racialized admittees and many Gender Equity Committee projects have been forward-thinking and bridgebuilding initiatives. I’m truly encouraged and proud to see how the Equity Office has evolved. Add to that the off-site Bar Council meetings, and I believe the Society’s genuine desire to change the status quo is clear.

– Recommendation 13, Royal Commission on the Donald Marshall, Jr., Prosecution

Maybe Marshall’s legacy will encourage us to train a more critical eye on the structure of the legal system itself and look to other ways of doing justice, to see if we can improve the judicial process for all Canadians.

Photo by The Canadian Press/Andrew Vaughan

Mourners walk to Membertou Memorial Cemetery for the burial of Donald Marshall Jr. on August 10, 2009. Marshall, who spent 11 years in prison after being wrongfully convicted of murder, died after complications from the double lung transplant he had six years ago.

What I find disappointing is that the number of Black and Aboriginal lawyers in private practice, particularly in Halifax, is virtually unchanged. That paucity of racial diversity in the private Bar is even more staggering when one considers that the IB&M Initiative has resulted in a guaranteed pool of racialized graduates since 1992. There is an obvious disconnect. The chasm is there. Why does it persist, despite the multitude of racialized individuals who’ve graduated from law school? I really don’t know but to say the answer is racism – plain and simple – is simply wrong. I can say from my own experience, although I recently chose to leave private practice and work in-house, at no point did I ever feel my race was a negative factor in my relationships with my firms here in Halifax. My departure was based on priorities and lifestyle. It should not have had an adverse effect on the percentage of racialized lawyers in the Halifax private Bar; it did, however, because there were so few of us. So, what has changed since the Marshall Report? Well, the Society has certainly made significant strides in reaching out to bridge the gap with a number of communities. In contrast, the private Bar has been largely ineffectual in bridging the chasm between itself and racialized law graduates. In February 1998, I wrote a Society Record article noting that little had changed regarding the representation of racialized lawyers in Halifax in the 100 years since James Robinson Johnston, Dalhousie’s first Black law graduate, entered the profession. Disappointingly, I could have resubmitted the same article in 2008. Unless our profession takes significant steps to bridge this divide, that same article could be republished in 2018. As lawyers practicing in this province, let’s commit ourselves to ensuring that is not the case. October 2009

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NSBS Equity Officer from 1999 to 2000

NSBS Equity Officer from 2001 to 2006

My life experience did not prepare me for the decision and recommendations of the Donald Marshall Inquiry. My life experience prepared me to hear yet another message of condemnation directed toward Donald Marshall. I celebrated silently, thinking of the impact the recommendations would have and Heather Chandler how finally strategic Coordinator, Diversity Management initiatives would start Halifax Regional School Board to dismantle systemic discriminatory practices within the justice system. I wondered how the Commissioners arrived at their understanding of systemic discrimination.

When the Society Record first contacted me about writing a submission, I thought, “Hey, no problem— I’ll whip something together.” In fact it’s been a much more difficult piece than I first imagined. On the one hand, there is no denying that the legal system has changed dramatically since Donald MarMarie Paturel shall, Jr. was wrongUniversity Diversity Projects Manager fully convicted yet on Student Services / Human Resources the other hand, there London Metropolitan University is still some way to go, not just to address the findings of the Royal Commission but to ensure that any barriers to justice are addressed in all areas of the legal system.

I believe the work I do in my role as Coordinator, Diversity Management at the Halifax Regional School Board is shaped by a number of Marshall Inquiry recommendations in concert with other reports, such as the Black Learners Advisory Report. I and other equity/diversity practitioners deliver professional development for staff, implement policies and programs and design curriculum that is diverse and respectful of cultural differences. Equity hiring at all levels within the Halifax Regional School Board ensures that all students and employees become accustomed to experiencing inclusion and diversity at all levels. The role of the Equity Officer at the Nova Scotia Barristers’ Society is an important example of the continued commitment to advance equity issues within the legal profession. This kind of initiative is critical to our society’s ability to realize fully inclusive and diverse communities and workplaces where individuals will automatically be judged by their character. Deconstruction of individual and systemic racism, sexism and other forms of discrimination require ongoing efforts to affect meaningful cultural change. The Society’s mentorship program is another deliberate strategy designed to help individuals to destruct preconceived notions and stereotypes. It also provides opportunities for racialized individuals to gain information about the culture of law. I heard of many mutually positive insightful experiences from students and lawyer mentors. We have learned a great deal and made meaningful progress in the area of equity. I hope we continue to move forward.

First, let me say that it is important to acknowledge how far the profession has come. It is something to celebrate, to underline, to highlight, because at the very least it indicates that a profession often accused of being privileged and elitist can and should change. If there is one thing we can take from the existence of those changes is that the profession is by far a better profession (both for its members and for the public) because of those changes. But acknowledging this does not mean that there is no more need for change or that the reason for change is somehow no longer valid. Second, although I believe that the NSBS equality and diversity programs and initiatives have helped to address barriers that existed and may still exist in the profession, the students, law graduates and members I came to know during my time at the Society—and who are a part of the changes we are seeing in the profession­—are where they are because of who they are, the choices they have made and the energy they have put into getting where they are now. Nothing should take away from their hard work and achievements. It was during my time at the Society that I realized the main role of the NSBS is the protection of the public interest and that this is an integral part of the ‘self-regulating’ power of the profession. I came to understand that in order for the legal profession to act in the public interest, it has to reflect the public it is serving. In order to keep up with an ever-changing society in Nova Scotia, the NSBS must also evolve on a continuous basis. To a large extent that is the greatest challenge for any profession but even more so for the NSBS, because it has articulated its purpose to be “… to uphold and protect the public interest in the practice of law.” I now work in equality and diversity in the higher education sector in England and I continue to believe in that basic principle— public professions and institutions have to in some way reflect the broader society if they wish to continue to serve the public interest and, even more importantly, to continue to be relevant to all members of society.

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The Society Record

The IB&M Initiative: Reflections on 20 years

I

was asked to submit a brief article to the Society Record highlighting the 20th Anniversary of the Indigenous Blacks & Mi’kmaq (IB&M) Initiative at Dalhousie Law School. Not long after that request, Donald Marshall, Jr. passed away. I had hoped that Mr. Marshall might be able to attend our 20th Anniversary celebrations, however, we will still include him by honouring his sacrifices and legacy.

So upon reflection, and rereading the book Justice Assistant Professor & Director Denied, the report of IB&M Initiative, Dalhousie Law School the Royal Commission on the Donald Marshall, Jr., Prosecution [Marshall Commission Report] and the 1990 Special Edition of the Micmac News, the original focus of this article changed. These sources provided a glimpse into the experiences of Donald Marshall, Jr., a Mi’kmaq man who was wrongfully convicted of murder and imprisoned for 11 years; and Sanford (Sandy) Seale, a promising young African Nova Scotian who was killed during the same initial incident. Both men were from loving and hard-working families.

Michelle Williams-Lorde

I cannot say with certainty whether the IB&M Initiative would have been created were it not for the Marshall Commission. I can say that Mr. Marshall’s experience and the resulting Commission contributed significantly to the development and ongoing support of the IB&M Initiative. Recommendation 11 of the Marshall Commission Report states: We recommend that the Dalhousie Law School’s minority admissions program for Micmacs and indigenous Blacks receive the financial support of the Governments of Canada and Nova Scotia, and the Nova Scotia Bar.1 Consequently, the IB&M Initiative collectively “stands on the shoulders” of Donald Marshall, Jr., Sandy Seale and the supporters and allies who continue to believe in justice. Dreamers Reach A painting entitled Dreamers Reach was commissioned in the early days of the IB&M Programme, as it was then known. The painting was created by First Nations artist Dwayne Dussome (“the Hunter”) and the accompanying plaque read in part: … Dreamers Reach is about people who hold the belief that they can, and will, achieve the goals they set for themselves no matter 1 Royal Commission on the Donald Marshall, Jr., Prosecution, Commissioners’ Report, Vol. 1, Findings and Recommendations, 1989, at 154.

how great the challenge. We must become as the characters in the painting: rising up, facing the challenge head-on. Those that greet challenge with the determination to succeed are the ones that become what they always believed they could be. Ultimately, it is for them that greatness begins in their own hearts with a dream and a desire to reach for it… The Fall 1990 Edition of Hearsay indicates that the original painting once hung on the atrium wall of Dalhousie Law School, outside of the students’ lounge. As a result of various renovations over the years, the painting ended up in a backroom and was recently rediscovered. The vibrant image of the revived painting perhaps symbolizes a renewal as we celebrate 20 years of IB&M success. In that same Hearsay article, then IB&M Director Wayne MacKay considered the success of the IB&M’s first year, concluding that the program was successful but also that “what we mean by success for this kind of programme is far from clear.” 20 years of success There is no question that the IB&M Initiative has been tremendously successful by many measures. Perhaps the success is best illustrated by the accomplishments and contributions of the over 110 law graduates who entered Dalhousie Law School through the Initiative. Alumni practice in all areas of law including Aboriginal law, tax, corporate, constitutional, criminal, environmental, family, human rights, and labour and employment. They are in private practice, act as legal counsel to First Nations, and practise within provincial and federal legal departments and legal aid offices. Some have clerked and pursued academic careers or serve as policy advisors combining law with other disciplines, while others have entered political life or branched out into the arts. All of our alumni have their own unique histories and experiences that are linked to their communities. As such, they make the legal profession more representative of the people it serves and the legal profession more racially diverse. They give back to their communities and to the legal profession through serving on boards and committees, developing organizations and volunteering in other ways. Many of our alumni have chosen to address issues of concern to First Nations and African Canadians. All alumni are points of access to law for their communities, serving as sources of legal information, representation, role models and mentors. Despite the success of our graduates, stereotypes and myths about the IB&M Initiative remain. It bears repeating that students who are recruited to Dalhousie Law School through the IB&M Initiative join the regular first-year class, write the same exams, complete the same work and earn the same LL.B. degree as all other students at Dalhousie Law School. While at the Law School, Black and Aboriginal students make an extraordinary contribution. Our alumni include three valedictorians, two Law Society Presidents and six recipients of the David Jones Memorial Award, bestowed by the graduating class upon October 2009

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“… DreamersReach is about people who hold the belief that they can, and will, achieve the goals they set for themselves no matter how great the challenge.” Painting by Dwayne Dussome

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The Society Record

a third-year student whose character has been the greatest source of inspiration to his or her classmates in the law school community. The Dalhousie Aboriginal Law Students Association (DALSA) and the Dalhousie Black Law Students Association (DBLSA) have added vitality to the Law School community. DBLSA has hosted the national Black Law Students Association of Canada (BLSAC) Conference four times in the past 19 years; and DALSA has organized important regional conferences and developed a Mi’kmaq History Month Discussion Series. In addition, many students work at the Dalhousie Legal Aid Clinic as part of their legal education, thereby giving back to the individuals and communities served by the clinic, while developing valuable legal skills. Challenges remain So there is no doubt that the IB&M Initiative has made a difference. The Nova Scotia legal profession would not be the same without it, but unfortunately the story does not end there. Support for the IB&M Initiative was but one recommendation of the Marshall Commission Report. There were 81 others, and it is not clear whether all of them have been implemented. No doubt progress has been made. For example, we applaud the establishment of the Mi’kmaq Legal Support Network (MLSN) and its ongoing work. In contrast, we have not seen the establishment of similar culturally-specific programming for African Nova Scotians, save for some innovative restorative practices implemented by the Community Justice Society. Reviewing the recommendations with a view to furthering their implementation is not merely an academic exercise. The overall purpose of the IB&M Initiative is to reduce structural and systemic discrimination by increasing the representation of Indigenous Blacks and Mi’kmaq in the legal profession. Our communities continue to face enormous challenges arising from centuries of marginalization and exclusion, such as the legacy of segregated and residential schools. As a result of these dynamics, African Nova Scotians and Mi’kmaq experience higher rates of unemployment and poverty than the general population, and discrimination persists in other areas as well. There are some who would—although perhaps not publicly—suggest that Mi’kmaq and African Nova Scotians bring such problems on themselves, or are the authors of their own misfortune, evincing a belief that the problems are a result of some inherent inferiority or difference. A variation on such beliefs is sometimes expressed directly or indirectly to students and alumni in a way that suggests that they are less qualified than their White counterparts. These types of beliefs are merely contemporary versions of the outdated biological determinist arguments that sought to scientifically establish racial superiority on the basis of things like skin colour or head size. At the same time, there seems to be a prevailing notion among some non-racialized peoples that racism and other forms of intersecting oppression no longer exist—having been somehow erased from our everyday lives and institutions because we no longer publicly tolerate overt expressions of racism. Nothing could be further from the truth and the denial of the pervasiveness of racism and legacy of colonialism only serves as yet another barrier to equality. Such beliefs also reinforce a system that privileges Whiteness and thereby sustains preferential access to power, opportunities and resources on the basis of race.2 The persistence of such beliefs, albeit 2 George Lipsitz, The Possessive Investment in Whiteness, (Philadelphia, PA: Temple University Press, 2006).

in modern variations, demonstrates that if we are to truly ensure that what happened to Donald Marshall, Jr. does not happen again, we must not only change systems and institutions, but also question our own internal thoughts and consequent actions. I was young at the time of the Marshall Commission, but I will never forget being at the cottage of a friend whose father was a partner in a large firm. As we discussed the case, this lawyer said something to the effect of, “Well, they [Mr. Marshall and Mr. Seale] were up to no good anyway … I don’t know what all the fuss is about.” I was stunned by the comment, but intuitively felt the power behind the sentiment and it influenced my perception of Nova Scotia’s legal system at that time. The experience also illustrates that every interaction, however small, between lawyers and members of African Nova Scotian and Mi’kmaq communities shapes the overall public perception of the justice system. Renewing the vision More recently, I attended the 156th Annual Session of the African United Baptist Association (AUBA) hosted by my home church and the AUBA mother church, Cornwallis Street Baptist Church. Established by Rev. Richard Preston on September 1, 1854, the AUBA was a critical force in building and sustaining African Nova Scotian churches and communities. The Sunday afternoon service was led by the dynamic host pastor, Rev. Rhonda Britton, the first female pastor in the 177-year history of Cornwallis Street Baptist Church, and the theme for the Annual Session was “Revive the Vision.” Rev. Britton suggested that it was important to honour, recognize and learn from the accomplishments of Rev. Preston, but that he would have wanted the AUBA to do more than merely maintain what he had built. Instead, he would expect the AUBA to grow and thrive, moving far beyond what he could have envisioned in 1854. Our students, lawyers and communities have fulfilled the “Dreamers Reach” despite the many obstacles they have faced in legal education, the legal profession and the broader society. They have done so with the help of supporters and allies including family, professors, administrators, mentors, colleagues and acquaintances who have been willing to pierce the veil of pre-existing stereotypes, to confront covert racism and the accompanying denial that it exists, and even to challenge power—in an effort to acknowledge the individual humanity of others. Such allies and supporters are willing to take some action, if only in the form of a small gesture, to do things differently and more equitably. Those gestures, big and small, are what will prevent another Donald Marshall, Jr.-Sanford Seale tragedy and, in turn, honour the lives of those men. So in renewing the vision for the IB&M Initiative, I will be working toward strengthening the connections between the African Nova Scotian and Mi’kmaq communities and the legal profession, with a view to addressing the communities’ ongoing legal needs and aspirations. In turn, I hope that individuals and institutions responsible for implementing any outstanding recommendations of the Marshall Commission Report will do so with the meaningful and ongoing participation from these affected communities. Finally, I invite you to join us in celebrating all of those who have contributed to the success of the IB&M Initiative by attending our 20th Anniversary Gala Dinner on the evening of Friday, January 22, 2010. October 2009

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Reflections on Recommendation 12 T his article focuses on the Marshall Commission Report’s specific recommendation for increased representation of racialized persons within the judiciary. Recommendation 12 of the Report states as follows: We recommend that Governments consider the needs of visible minorities by appointing qualified visible minority judges and administrative board members wherever possible. At the time this recommendation was made in 1989, of the 1,200 Naiomi Metallic lawyers called to the Bar, about a Burchell Hayman Parish dozen were African Nova Scotian and there were no Mi’kmaq lawyers in the province. There was only one African Nova Scotian judge (Judge Corrine Sparks, of the Nova Scotia Family Court) and no Mi’kmaq judges.1 While the Commission felt compelled to make the specific recommendation for increased representation within the judiciary, it also made it clear that the problem of under-representation within the judiciary could not be addressed until the far more immediate problem of underrepresentation of racialized persons entering and graduating from law school was rectified.2 And so, here we are in 2009, 20 years later. Thanks in part to efforts to increase access to legal education for racialized persons through such measures as the Indigenous Blacks & Mi’kmaq Initiative, nearly 100 members of the Nova Scotia Bar now self-identify as being either Aboriginal or racially visible. Yet this significant increase in representation within the Bar has yet to lead to any appreciable change in Nova Scotia’s judiciary in terms of reflecting the province’s two most historically disadvantaged groups. As noted elsewhere in this series, in the 20 years since the Report, there has been there has only been one African Nova Scotian judge appointed (Judge Jean Whalen in 2009) and no Mi’kmaq appointments.3 Does having a judiciary that is representative of Nova Scotia’s historically disadvantaged communities matter? It could be argued that in a perfect world, where people are not 1 Royal Commission on the Donald Marshall Jr., Prosecution, Commissioners’ Report, Volume 1, Findings and Recommendations, 1989, p. 154. 2 Ibid. 3 The only other racially visible lawyer appointed to the bench was Judge Castor Williams, who is Carribean Canadian, appointed to the Provincial Court in 1996. Judge Williams has since retired.

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The Society Record

influenced, consciously or not, by their biases and socio-economic backgrounds, having a representative judiciary would not matter. But it was not a perfect world at the time of Donald Marshall’s wrongful conviction, and while progress has been made in the intervening years, some members of Nova Scotia’s historically disadvantaged communities might still say that some prejudice remains today. If the problem is truly one of lack of sensitivity to, and lack of knowledge of, the experiences of Mi’kmaq and African Nova Scotian populations within the province, then it could, in theory, be entirely solved through education and sensitivity training for lawyers and judges, without the need for increased representation of racialized persons within the judiciary. There is no question that such training is necessary and important and, indeed, was the focus of several other recommendations within the Commission’s Report. But even if such training could be successfully provided to all judges and lawyers in the Province, would it still be acceptable for all of the faces within the judiciary to be White ones? I would respond by citing one of the guiding principles of our legal system: “Not only must justice be done; it must also be seen to be done.” In order to feel that the justice system, embodied in its highest form by judges, is truly capable of rendering justice to them, Mi’kmaq and African Nova Scotian people must see themselves reflected within the judiciary. All the sensitivity training in the world cannot answer the basic need of Mi’kmaq and African Nova Scotian people, who are just as much a part of the fabric of this province as those whose ancestors came here in boats from Europe4, to see themselves represented within the major institutions of this province. That is not to suggest that the only benefit to having more Mi’kmaq and African Nova Scotian judges would be to the members of those communities. Unquestionably, there would be a large benefit to those communities, seeing themselves as having a voice within one of our most important institutions, but there would also be benefits to the larger Nova Scotian society as well. In the words of the Commissioners: [T]he presence of more non-White faces in these important and respected institutions will be of value not only to minority group members. It may also help the general population develop increased sensitivity to—and tolerance for—the needs and aspirations of visible minorities. Their presence will remind us on a daily basis that minorities are members of our society too, and that that society is not—and never has been—completely White.5 For the general population, seeing African Nova Scotian or Mi’kmaq judges presiding on the Bench will counteract negative stereotypes they might hold of people from these communities, while at the same time foster a 4 The Mi’kmaq would point out that as the original people of this land, they are the origin fabric of the place we now call Nova Scotia. 5 Supra note 1 at p. 153.

greater appreciation of the commonalities our communities share, such as our pride in this province we call home and our desire to see it prosper. Why has there not been more progress in the appointment of African Nova Scotian and Mi’kmaq lawyers to the judiciary in the last 20 years? Having now established that a representative judiciary matters, we must scrutinize why we are not there yet. We have already seen that the problem is no longer one of numbers per se, since there are nearly 100 lawyers in the province who self-identify as Aboriginal or racially visible. Does the problem lie with qualifications? Lawyers appointed to the Bench must possess a reputation for integrity, fairness, independence and impartiality, and a demonstrated knowledge of the law. Surely, as within any sampling of 100 lawyers, there must be a certain percentage of the lawyers who self-identify as Aboriginal or racially visible who embody the above qualities. I would argue that the problem lies not with these lawyers lacking the qualities for judicial appointment but rather, with the criteria we use to measure these qualities. One criterion that we can see most readily as presenting barriers to greater appointment of Mi’kmaq and African Nova Scotian lawyers to the Bench is years of standing at the Bar. The majority of Aboriginal and racialized lawyers in Nova Scotia are graduates of Dalhousie Law School’s Indigenous Blacks & Mi’kmaq Initiative, created in 1989 in response to the Marshall Inquiry. Consequently, the majority of these lawyers are generally newer members of the Bar. The Federal Guidelines on Judicial Appointment require candidates to possess a minimum of 10 years at the Bar. The Provincial Guidelines were recently amended in April 2009 to increase the minimum requirement of years of practice from 10 to 15 years at the Bar (though it should be noted that both the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 5 and Family Court Act, R.S.N.S. 1989, c. 159 , s. 5 set the minimum at five years). The adverse impact resulting from setting the minimum years at the Bar too high becomes obvious when we compare the number of Aboriginal and racialized lawyers eligible to compete at each of these minimums: 5-year minimum as per Provincial Court Act Eligible lawyers from Aboriginal and racialized communities in Nova Scotia

72

10-year minimum as per Federal Guidelines 45

15-year minimum as per Provincial Guidelines 12

I am not suggesting that it is wrong to require a minimum number of years within the profession as a measure of qualification for judicial appointment. However, if we recognize the importance of having Mi’kmaq and African Nova Scotian judges, we may have to consider being more flexible. This might include selecting a minimum that does not exclude the majority of eligible candidates from these communities (such as five or 10 years, as opposed to 15 years), or allowing knowledge of the law to be measured by a combination of years of practice with some other criteria that demonstrates a candidate’s qualifications.

the profession. Traditionally this would include writing of scholarly texts and articles on the law, teaching and presenting on the law, participating in law reform committees and sitting on Bar Council. Lawyers from historically disadvantaged communities may feel compelled invest their volunteer hours in ways that serve the particular communities they come from. Such service may not always be legal in nature. Even when it is legal in nature, such work may not be valued as highly as service that can be characterized as benefiting a particular area of the law, or a legal institution. While not a requirement for judicial appointment, there is a general tendency to prefer lawyers in private practice, subject perhaps to the occasional appointment of law professors to the Bench. This presents particular problems for Mi’kmaq lawyers. Many of the Mi’kmaq lawyers I know work as in-house counsel for Aboriginal organizations or First Nation governments. In some cases, this is because the lawyer first tried private practice and had negative experiences, and found Aboriginal organizations to be a more welcoming environment. In other cases, some Mi’kmaq lawyers simply see working at the grassroots level as the best way to achieve positive change for Aboriginal people. There are more than 30 Mi’kmaq lawyers working in the province, yet only one in private practice, one with the Crown’s office and two with Legal Aid. If we want more Mi’kmaq judges, the tendency to appoint lawyers from private practice may have to be reconsidered. At a minimum, the lack of retention of Mi’kmaq lawyers within private practice should be seriously studied by the profession. Finally, there may also be a tendency to view a specialization in an area of law related to a minority community differently. This can hinder a candidate from that community’s chances for judicial appointment. For example, I believe that a perception exists that specializations like Aboriginal law are “soft law” and not on par with more traditional areas like tort or commercial law. A candidate for judicial appointment who specializes in Aboriginal law may be viewed as less knowledgeable than a candidate who specializes in corporate commercial litigation. First, such a perception may not be warranted. During my time as a law clerk at the Supreme Court of Canada, I recall one judge exclaiming that Aboriginal law was one of the most difficult areas of law he had ever encountered. Second, if we believe that appointment of racially visible judges matters, we will have to become educated about, and accord greater value to, areas of non-traditional practice in which some candidates may work. Conclusion The above are some of the reasons why I believe there has been a lack of progress in appointing more Mi’kmaq and African Nova Scotian lawyers to the judiciary in Nova Scotia in the 20 years since Recommendation 12 was made. I would characterize the problem generally as a failure of the existing evaluation criteria to account for the particular circumstances and needs of Mi’kmaq and African Nova Scotian lawyers in the province. If we believe that having a judiciary that is representative of our Mi’kmaq and African Nova Scotian communities matters, then such criteria should be reviewed to ensure they are sufficiently flexible to meet the needs and circumstances of all lawyers in the province. This would not result in “a lowering of standards” for judicial appointment. There are many different ways to measure the qualities we seek in a judge. It is high time we start exploring these alternatives.

Another criterion for judicial appointment that can tend to create barriers for African Nova Scotian and Mi’kmaq candidates is service to October 2009

37

kudos

Cpl. Craig Marshall Smith

RCMP Diversity Policing Analyst

A

s a criminal defence lawyer, I have come Pink Star Murphy Barro, Yarmouth into contact with many RCMP officers. None of them would be held in higher esteem by me than Cpl. Craig Marshall Smith. Although he is no longer “walking the beat” in Yarmouth, I have continued to follow his career.

Philip Star QC

It is truly fitting that Cpl. Smith would end up as the Diversity Policing Analyst for the RCMP in H Division (Nova Scotia), as diversity may best describe the life of this Nova Scotian. Youth worker, bus driver, father, YMCA Director, policeman, educator and author— those are the types of experiences and the knowledge he brings to his career with the RCMP. The range of Craig’s life experiences prior to joining the RCMP, which directly impacts his position, includes much community development and serving on the Halifax Regional Police & Black Community Liaison Committee and the Multi-Cultural Liaison Committee of the Canadian Association of Chiefs of Police. Craig has been involved in raising awareness around racism, youth and educational needs since the early 1980s. In 1994, as the Library Youth Worker at the North Branch Library, Craig first brought together Black students and the Halifax Police Services members for a positive exchange. Craig’s work, since being promoted in 2005 into the Corporal’s position as Diversity Policing Analyst, includes travelling around Nova Scotia to better the relationship between the RCMP and the diverse communities of our province. It has also included partnering with the Office of African Nova Scotia Affairs, presenting at consultations in eight Black communities and holding career/recruitment presenta38

The Society Record

tions in another 10. In 2007, the Halifax Public Libraries, in partnership with the RCMP under Craig’s leadership with the HRP, enhanced and revised this program. By 2008, Craig’s unit had received funding to hold sessions across the province. Craig coordinates the Commanding Officer’s H Division Diversity Advisory Committee, which came into existence as a direct result of the Marshall Inquiry. This committee provides advice and direction to the Commanding Officer on a variety of issues and concerns. He has lectured to RCMP members and others within law enforcement on the topic of bias-free policing since 2006. Presently, he is in the process of rolling out African Nova Scotian-specific cultural competency education to RCMP members across the Division. As a writer and educator, Craig has provided a unique insight into the African Canadian experience, leaving himself somewhat open to criticism as he has attempted to expose institutionalized racism in the RCMP and Canada. Craig’s 2006 book, You Had Better Be White By Six A.M. – The African Canadian Experience in the Royal Canadian Mounted Police, provided Canadians with a glimpse of the African Canadian struggle for equality in our country. It is the kind of learning tool that can be utilized in classrooms across our country and a must-read for those within the legal field, law enforcement, correctional services, parole and probation, and more. He is a Canadian National Griot Award winner and an inductee to the Rev. Dr. William P. Oliver Black Wall of Honour. Also devoted to celebrating achievement in sport, Craig is a former president and

founding member of the Black Hockey and Sports Hall of Fame, and current president of the Society of North American Hockey Historians and Researchers. In 2009, Craig and his brother Wade created a new website called blackgreenandredserge.com, which explores African Nova Scotian stories and challenges, and enables businesses and institutions to

provide cultural sensitivity education to their employees. Suffice it to say that I take great pride and pleasure in sending kudos to Cpl. Craig Marshall Smith. He is truly an inspiration to his fellow police officers, as well as all Nova Scotians, in helping to eradicate racism.

arsDrh. Doanallld la M Pau t Coordinator, with

Projec O.N.S., M. Julien, DCL, DHuml, Confederacy the Executive Director of of Mainland Mi’kmaq

P

aula Marshall is the Program CoordinaLegal Advisor tor for the Mi’kmaq Confederacy of Mainland Mi’kmaq Legal Support Network (MLSN) with the Confederacy of Mainland Mi’kmaq. At the province’s 2009 Crime Prevention Symposium in Halifax, Paula was presented with the inaugural Justice Minister’s Award for Leadership in Crime Prevention, for her involvement in legal support programs for Aboriginal persons in Nova Scotia.

Mary Jane Abram

This award is presented for outstanding leadership and commitment to crime prevention and promoting safety in communities. Paula was recognized for her involvement in the MLSN from its inception as a pilot project in the 1990s to the current province-wide multi-service legal support program. Paula has been a strong advocate for youth justice and Aboriginal justice throughout her entire career. She remained committed to the Aboriginal Justice Program and its cultural components throughout many changes in its environment. The MLSN has been priviliged to have Paula involved since 2004, when it came under the umbrella of

the Confederacy of Mainland Mi’kmaq. Focusing on the integrity and accountability of the programming, Paula is instrumental in MLSN’s continued success by tirelessly working to seek and sustain funding for its ongoing operation and development. She is a current champion for restorative justice, victim services, court worker programming, regulatory offences and reintegration services. The concept of a culturally sensitive approach to justice support programs was brought to the forefront during the Marshall Inquiry, after Donald Marshall, Jr. was wrongfully accused and imprisoned for murder. The Mi’kmaw Legal Support Network built on the recommendations from the inquiry to have Mi’kmaw translators in the courtroom, develop sentencing circle protocols, reintegrate offenders into communities and engage in youth criminal justice initiatives. The Confederacy of Mainland Mi’kmaq is a non-profit tribal council that provides programs and services to its six member bands and, upon request, to all 13 Mi’kmaq communities in Nova Scotia.

October 2009

39

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The Society Record

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Confronting the remnants of racial prejudice R eaders of Donald Marshall Jr.’s obituary in the Saturday, August 8, edition of the New York Times would have found the following statement in the third paragraph:

Late on the night of May 28, 1971, Mr. Marshall and a friend, Sandy Seale, went walking in a Sydney park and tried to rob an older man, Roy Ebsary, who drew a knife and killed Mr. Seale. Come again? The Royal Commission on the Donald Marshall, Jr., Prosecution spent three years investigating the Marshall case, and held 89 days of public hearings. It concluded, unequivocally:  “That Sandy Seale was not killed in the course of a robbery, attempted robbery, mugging, or rolling.”  “That Donald Marshall, Jr., told the truth about the events

surrounding the stabbing when first interviewed by the Sydney City Police on the night of the incident.”

Parker Donham

Communications Consultant

 “That Ebsary and [Jimmy] MacNeil initiated the contact with Marshall and Seale,” and  “That the stabbing was the result of Ebsary’s violent and unpredictable character.” After Marshall’s friends intervened, the New York Times corrected its obituary and published a gracious retraction September 3. It turns out the obituary writer had based his faulty account of the murder on Justice Denied, a book by Michael Harris published three years before the Marshall Inquiry produced its authoritative report. October 2009

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I recounted this episode recently to a longtime Sydney resident, a distinguished and fair-minded community leader who lived through the murder, Marshall’s trial, his subsequent release and the Royal Commission. Partway through the story, he cut me off. “Parker, are you absolutely certain Marshall had nothing to do with the murder?” I was thunderstruck. “___________,” I said. “They found the knife that killed Seale in Ebsary’s basement. It still had fibers from Seale’s jacket on it. There is no doubt whatsoever that Ebsary killed Sandy Seale.” “Oh,” said my friend, looking sheepish. “I’m relieved to hear that.” A few weeks after Marshall’s death, I was working for a client whose project team included a bright university student on a summer work program. She introduced herself as a Cape Bretoner, and a few questions about her family revealed a connection to Marshall, by marriage. She appeared embarrassed at the revelation.

laid bare all the facts, why do so many Nova Scotians keep wanting to find fault with the boy who suffered this injustice? Why does a well-informed community leader, widely respected for his fairness, wonder if it was really Marshall who committed the murder? Why does a bright young university student feel ashamed of her family’s connection to this man? Why does a capable reporter for the New York Times find it so easy to believe that Marshall and Seale, an Indian and an African Nova Scotian, were trying to rob Roy Ebsary when he stabbed them both, killing Seale? In 2009, our world has progressed to the point that virtually everyone agrees it is abhorrent to judge anyone on their race. Overt racism is widely regarded as shameful. As the Marshall commission put it, “That racism played a role in Marshall’s conviction and imprisonment is one of the most difficult and disturbing findings this Royal Commission has made.” To white people, this feels like progress, and no doubt it is. The days when my friend’s kindly Sydney Mines grandmother would throw out the dishes on which she served tea and biscuits to a Mi’kmaw peddler are well behind us.

“My family doesn’t talk much about that connection,” she said softly. I asked if she knew anything about the Marshall case.

Yet, ironically, the very stigma we attach to racism makes it that much harder for us to confront the remnants of racial prejudice lurking within us.

“Not really,” she said. I quickly rattled off a bare outline of the facts: That Marshall was a shy, inarticulate teenager, completely innocent of any crime. That police bullied child witnesses into lying on the stand. That when the RCMP reinvestigated more than a decade later, the case fell apart in days. That when the Mounties reinterviewed the untruthful witnesses, they were eager to give up the guilty secret they had carried for so long. That one of the most thorough Royal Commissions in Canadian history concluded that the justice system failed Marshall “at every turn,” and that this failure was attributable, “at least in part,” to racism. The young intern was astonished. “I had no idea,” she said. “I just assumed from what I had heard that he was some kind of terrible person.” Throughout his adult life, Donald Marshall faced white people who just naturally assumed he was “some kind of terrible person.” Again and again I have heard people who never laid eyes on Donald assert with absolute confidence that he was “a punk,” “a troublemaker,” that “he was up to no good that night,” that “he deserved what he got,” and that, in the unforgivable words of the disgraced Court of Appeal panel, “any injustice ... was more apparent than real.” In a companion piece in this journal, lawyer Bruce Wildsmith asks why “so many people otherwise considered competent demonstrate[d] a lack of competence in this case?” The commission had an answer: “[T] he conclusion [is] inescapable that Donald Marshall, Jr. was convicted and sent to prison, in part at least, because he was a Native person.” I have a similar question. After a searching inquiry by three justices of national repute, assisted by lawyers of unimpeachable caliber, has 42

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Mi’kmaq do not regard Donald Marshall as “some kind of terrible person.” They hold him in high esteem, notwithstanding the personal struggles he endured following his release from prison. They understand, instinctively, what he went through, and the role that racism played. They know how much of the progress Mi’kmaq have made since 1971 rests on his shoulders. They recognize the grace with which he bore that burden, and the toll it took. This is the ultimate paradox of the Marshall case: We seek to blame the 17-year-old Donald Marshall for his wrongful conviction, and we take thinly disguised satisfaction at the troubles he experienced in later life, because, otherwise, we would have to acknowledge that our culture is steeped in racism—and racism is a terrible thing. So we seek to shift the blame, “at least in part,” to young Donald and his adult incarnation. Racism is a terrible thing. The Royal Commission on the Donald Marshall, Jr., Prosecution did us a great service by recognizing the role it played. It remains for us to face the role it still plays, and in that, Nova Scotia has a ways to go. Parker Donham wrote a two-part book section on the Marshall case for the October and November 1988 editions of Reader’s Digest. He frequently wrote about the case, and the Nova Scotia government’s response, in his Halifax Daily News columns. A 1984 lawsuit against Donham and the CBC for remarks he made on the radio program Sunday Morning, criticizing the police chief of Sydney, muted most press commentary about the case for two years. The lawsuit was abandoned on the eve of trial, unleashing a torrent of press comment critical of government inaction and leading to the establishment of the Marshall Commission. Donham now works as a communications consultant with the Kempt Head Institute, and maintains a blog at contrarian.ca.

The landmark Marshall treaty case – 10 years later M

Dr. Donald M. Julien

Executive Director The Confederacy of Mainland Mi’kmaq

i’kmaq across Nova Scotia are celebrating the 10th anniversary of the historic Marshall court decision. On September 17, 1999, the Supreme Court of Canada ruled that Mi’kmaq people have the treaty right to fish and sell their catch to earn “a moderate livelihood.” With this Marshall decision, Mi’kmaq in Nova Scotia won a victory in the ongoing struggle to have Mi’kmaq treaty rights and Aboriginal rights recognized and implemented.

From 1927 to 1951, the Indian Act made it illegal for First Nations to hire a lawyer or raise money to commence legal proceedings against the government. The Marshall case marked the first time since the repeal of those sections of the Indian Act that Mi’kmaq in Nova Scotia acted in unity to engage in a legal action to uphold treaty rights. The aftermath of the decision led to a violent clash between First Nations and non-native fishers and the Department of Fisheries and Oceans over implementation of the Marshall decision. As a result of the decision, the majority of Mi’kmaq bands in Nova Scotia are now engaged in the commercial fishery under interim fishing agreements negotiated with the federal Crown. The Marshall decision and subsequent interim agreements created jobs and assisted in the recreation of the Mi’kmaq fishery. The next step is for the Mi’kmaq of Nova Scotia to exercise their treaty right and fish as a unified nation without 13 separate interim agreements and free from violence and harassment. The Mi’kmaq continue the daily struggle to achieve the recognition and implementation of Aboriginal and treaty rights.

The impetus for the legal battle for fishing rights was Donald Marshall, Jr., who passed away on August 6, 2009, due to complications from a 2003 lung transplant. The outpouring of condolences and support to the Marshall family acknowledges and highlights the communities’ and Mi’kmaq leaders’ recognition of the important role Marshall played in the recognition of treaty rights. Photo by The Canadian Press/Andrew Vaughan

In support of Donald Marshall, Jr., a court challenge had been launched supported by all 13 Chiefs in Nova Scotia operating under the umbrella of the tribal councils, the Union of Nova Scotia Indians and the Confederacy of Mainland Mi’kmaq. It was a landmark action of unity by the Chiefs across the province, who organized and supported Donald Marshall in a lengthy and expensive court battle in order to have the 1760-61 Peace and Friendship Treaties recognized.

Donald Marshall Jr., accompanied by Mi' kmaq Grand Chief Ben Sylliboy, right, and his cousin, Chapel Island Chief Lindsay Marshall, left, walks through Sydney, NS, in a peaceful protest over Aboriginal fishing rights, on September 28, 2000. October 2009

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Succession planning for sole and small firm practitioners

A

t the Nova Scotia Barristers’ Society’s 2009 Annual Meeting, The Business of Law During Times of Uncertainty, a number of sole practitioners participated in the program Succession Planning for Sole & Small Practitioners offered by myself and Stephen P. Gallagher. One of our goals for the program was to provide a forum that might help program participants to continue this important process of putting a succession plan in place.

Specific goals to consider when planning for succession When developing your succession plan, I recommend that you start with the following specific goals: 1. Identify and come to an agreement with an assisting lawyer—one who will step in and deal with your practice either on an emergency or a long-term basis in the event of your death or disability; 2.

Organize your practice and your files to allow for an orderly transition of your practice;

3.

Review trust account balances—determine why funds are still being held in trust and disburse where possible. Make any necessary application to dispose of undistributed trust funds;

4.

Develop file retention and destruction policies and review your files to determine • what can be culled from files; • what must be maintained; and • who will keep your closed files when you retire or on your death;

5.

Remember to consider Client ID Regulations [see Regulation 4.5] and other Legal Profession Act Regulations, including those relating to the maintenance of real property foundation documents. [See Part 13 of the Legal Profession Act Regulations - www.nsbs. org/documents/general/CURRENTREGS.pdf];

6.

Insurance needs—look at all the insurance coverage you have, errors and omissions (including excess insurance), as well as personal life, disability and business expense coverage, to determine if what you have is adequate and how your retirement might impact this coverage.

Early in our program, we asked our participants to think about some very difficult questions. What would happen (both professionally and personally) in the event of your incapacity, your long-term disability or your death? What would happen to your practice and your livelihood? Our group seemed to agree that planning for such contingencies was an important process, but not an easy one. We suggested that lawyers need to begin their succession planning in terms of a series of developmental steps taken over a period of time. Why Succession planning is important not only for retirement and death but also for disability. What would happen to your clients and your practice if, tomorrow, you were struck with an illness that resulted in your being away from the office for an extended period of time? Would you have a practice to return to, upon your recovery? To avoid the chaos, the added expense and the tremendous stress that result when no plan is in place for any of these happenings, it is important that you begin now to put a succession plan in place. Developing an action plan Program participants were asked to try to get started on their own action plan. We tried to identify specific projects for individuals to get their succession planning started and encouraged them to set specific goals for themselves. It is important to keep in mind that a succession planning initiative itself is intended to: • protect your client’s interests; • minimize financial risk and emotional upset to your family; and • maximize the value of your practice.

Resources To assist you in this planning, I have prepared a comprehensive package of succession planning resources including articles, checklists, forms and sample precedents. This package is available through my office. As well, in the coming weeks, Stephen Gallagher and I intend to facilitate a telephone conference call with sole or small firm practitioners who are interested in hearing from other lawyers on their own succession plans, and to hear any other tips and suggestions that participants might have to offer. If you are interested in participating in this call please contact me, Deborah E. Gillis, QC, at [email protected] or 902.423.1300 (ext. 345).

October 2009

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Summation

few. So much has happened and will continue to take place because of the events in the life of Donald Marshall Junior. Whether it was tragic chance or honourable choice, the impacts of these two significant episodes continue to reverberate to this day. As one of my peers stated, he did more in law without a law degree than most people who hold one.

A

t times, we have all chosen the paths we took in Barrister & Solicitor, Halifax life for a multitude of reasons. Other times, we follow the paths for no reason at all other than it may have felt right to do at the time. I was not one of those people who went to law school because I had nothing better to do after undergrad. Halfway through my first degree, I decided upon law school for my own grounds. Among my many motivations, my strongest was my cousin, Donald Marshall Junior.

Jarvis Googoo

Growing up, Junior’s story of his wrongful conviction was common knowledge amongst my family, as well as to the Mi’kmaw nation. I was always under the impression that it was “one bad cop who hated Indians” that resulted in Junior being sent to prison for 11 years for a murder he did not commit. But it wasn’t until I started reading bits and pieces of the Royal Commission and other articles in undergrad that I learned it was more than just a police office who wronged Junior; it was a whole system plagued with racism.

With Junior’s incredible story in mind, I went to law school, hoping to be able to make even a fraction of the impact that Junior has had on the lives of many people. While I don’t know if I can ever achieve this, Junior’s story will always continue to inspire me to keep trying. Although I live life without regrets, I never did get the chance to tell Junior how much I respected and admired him, or what a great inspiration he was to me and to so many others who believe in justice and rights. After he passed away, doubts filled my mind about my decision to never tell Junior how I thought about him. I was so awestruck and humbled by his battles with the wrongful conviction and Supreme Court of Canada case, and how he conquered them, that I never had the courage to tell him that I chose to go to law school because of him. But over the next few days after Junior’s passing, those closest to him told me that he was proud of me for going to law school and becoming a lawyer, the first from my community and the first from our family, and how he felt shy around me to tell me this. My heart filled with pride and my eyes watered deeply when I learned that my hero thought about me in such high regard. The feeling was mutual. Throughout the services, I reflected over and over again about how better off countless lives, communities and systems have become because of the sacrifices of Donald Marshall Junior. Whether through law school, the Canadian criminal justice system, commercial access to the fishing industry or just taking up the fight for the good cause, so many people—Aboriginal and non-Aboriginal, members of various Bar Societies, those involved with the administration of justice and those who believe in change, just to name a few—have been affected, directly or indirectly in some manner or another, by the long-lasting legacy of Donald Marshall Junior. To play an important part in another person’s life is always commendable. But to play a part that entails great and incredible changes for law, policy and commerce, entities that govern and influence so many people on so many levels day in and day out, is nothing short of awesome and amazing.

“ … I never had the courage to tell him that I chose to go to law school because of him.”

Junior’s first legal battle falls into a third category many of us have been fortunate enough not to encounter: no choice! Events unfolded and catastrophic fate took place, and it saw Junior’s freedom and liberty wrongfully taken away for 11 years. A few years after the Royal Commission, Junior’s next legal battle was his choice; Mi’kmaw treaty rights! Knowing full well what our ancestors were promised by the Crown, Junior chose commercial fishery and to fight his way to the Supreme Court of Canada to defend that right. Over time, the decades of fighting took a toll on Junior’s health, and he passed away on August 6. The recommendations, changes and impacts from both the Royal Commission and the 1999 Supreme Court of Canada decision are far reaching and enduring on so many levels: from changes to the Canadian criminal justice system and judicial independence to Mi’kmaw participation in the Atlantic commercial fishery, and from professional ethics and responsibility to academia and scholarship, to name but a 46

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As all the recommendations of the Royal Commission are yet to be fulfilled, and Aboriginal participation in the commercial fishing industry of the Atlantic provinces continues to grow, the events in the life of Donald Marshall Junior will continue to evolve numerous aspects of our societies. Like many people, at times I ask myself if it is possible for one person to make a great difference in the lives of so many others with such a powerful magnitude of change. My first answer to that question will always be Donald Marshall Junior.

October 2009

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