Donald Marshall, Jr.

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"Donald Marshall" redirects here. For the grand chief of the Mi'kmaq Nation, see Donald Marshall Sr.

Donald Marshall, Jr. is a Mi'kmaq man who was wrongly convicted of murder. The case inspired a number of disturbing questions about the fairness of the Canadian justice system, especially given that Marshall was an Aboriginal; as the Canadian Broadcasting Corporation put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada."^[1] The case inspired the book and film, Justice Denied. His father, Donald Marshall, Sr., was grand chief of the Mi'kmaq Nation at the time.

Contents 1 Biography 1.1 Wrongful conviction 1.2 Compensation 1.3 Fishing rights battle 2 References

[edit] Biography

[edit] Wrongful conviction

Marshall was sentenced to life imprisonment for murdering acquaintance Sandy Seale in 1971. Marshall (age 17) and Seale (age 17) had been walking around Sydney, Nova Scotia's Wentworth Park during the late evening. They confronted and attempted to rob Roy Ebsary, an older man they encountered in the park. A short scuffle occurred and Seale fell mortally wounded by a knife blow which Ebsary delivered. Ebsary admitted that he had stabbed Seale but then lied about his role to the police who immediately focused on Marshall, who was 'known to them' from previous incidents. Police speculated that Marshall, in a rage for some reason, had murdered Seale. From the beginning, the system seemed determined to prove that Marshall was guilty.^[2]

Marshall spent 11 years in jail before being acquitted by the Nova Scotia Court of Appeal in 1983. A witness came forward to say he had seen another man stab Seale, and several prior witness statements pinpointing Marshall were recanted. In this appeal which acquitted him of the previous murder charge, Marshall was assumed to have lied in his first trial about his and Seale's activities on the night of Seale's death. The accusation was that he and Seale had actually approached Ebsary with the intention of robbing him and they were in the park that night. Ebsary was subsequently tried and convicted of manslaughter.^[2] When Marshall's conviction was overturned, the presiding judge placed some blame on Marshall for the miscarriage of justice, calling him "the author of his own misfortune."^[3] This was viewed as a "serious and fundamental error" by the Royal Commission report. Anne Derrick, Q.C., well-known social justice advocate lawyer, worked as Marshall's counsel,^[4] and Order of Canada recipient Clayton Ruby was co-counsel for Marshall, along with Anne Derrick, during the 1989 Royal Commission on Marshall's prosecution.^[5]

The Crown Attorney's failure to provide full disclosure (contradictory and coerced statements by witnesses, because they believed the evidence not provided had no bearing in the case) brought about changes in the Canadian rules of evidence regarding disclosure. The prosecution must provide full dislosure without determination on what may be useful to the defence (that is the defence's duty to decide).

[edit] Compensation

Donald Marshall Jr. spent 11 years (1972-83) behind bars and was poorly compensated. He and David Milgaard were imprisoned at about the same time. Milgaard was compensated 10 million CAD while Marshall was compensated about 200 000 CAD and put on a monthly stipend for the rest of his life.

In response, a Royal Commission was formed to investigate what had caused the miscarriage of justice; this led to an influential case on judicial independence in Canada, Mackeigan v. Hickman.

[edit] Fishing rights battle

Subsequently, Marshall reached prominence again as the primary petitioner in the landmark Supreme Court of Canada case of R. v. Marshall [1999] 3 SCR 45 regarding native fishing rights.

[edit] References