Donald Marshall Jr. (13 September 1953 – 6 August 2009) was a

Mi'kmaq The Mi'kmaq (also ''Mi'gmaq'', ''Lnu'', ''Mi'kmaw'' or ''Mi'gmaw''; ; , and formerly Micmac) are an Indigenous group of people of the Northeastern Woodlands, native to the areas of Canada's Atlantic Provinces, primarily Nova Scotia, New Bru ...

man who was

wrongly convicted A miscarriage of justice occurs when an unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Innocent p ...

of murder. The case inspired a number of questions about the fairness of the Canadian justice system, especially given that Marshall was Aboriginal; as the

Canadian Broadcasting Corporation The Canadian Broadcasting Corporation (), branded as CBC/Radio-Canada, is the Canadian Public broadcasting, public broadcaster for both radio and television. It is a Crown corporation that serves as the national public broadcaster, with its E ...

put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada." The case inspired the Michael Harris book, ''Justice Denied: The Law Versus Donald Marshall'' and the subsequent film ''Justice Denied''. His father, Donald Marshall Sr., was grand chief of the Mi'kmaq Nation at the time.

Early life

Marshall was born on 13 September 1953 on the

Membertou First Nation The Membertou First Nation ( Mi'kmawi'simk: ''Maupeltu'') is a Mi'kmaq First Nation band government in the tribal district of Unama'ki, also known as Cape Breton Island, Nova Scotia. As of 2012, the Mi'kmaq population is 814 on-Reserve, and appro ...

Sydney, Nova Scotia Sydney is a former city and urban community on the east coast of Cape Breton Island in Nova Scotia, Canada within the Cape Breton Regional Municipality. Sydney was founded in 1785 by the British, was incorporated as a city in 1904, and dissolv ...

. He was the oldest of 13 children of Donald Marshall Sr., the Grand Chief of the

, and his wife Caroline Googoo.

Wrongful conviction

Marshall was sentenced to life imprisonment for murdering acquaintance Sandy Seale in 1971. Marshall and Seale, both 17 years old, a Mi'kmaq and a boy of African descent,
Original NYT article with 3 September 2009 correction
respectively, had been walking around

Wentworth Park Wentworth Park is a park near the suburbs of Glebe and Ultimo in Sydney, New South Wales, Australia. The park contains several multi-purpose sporting pitches, cricket nets and a number of fitness installations. There is a playground in the s ...

in Sydney, Nova Scotia during the late evening with the intent to "roll a drunk" as stated in his trial. They confronted and panhandled Roy Ebsary and Jimmy MacNeil, two older men they encountered in the park. A short scuffle occurred and Seale fell, mortally wounded by a knife blow from Ebsary. Ebsary never admitted that he had stabbed Seale and 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, had murdered Seale. Marshall spent 11 years in prison before being acquitted by the

Nova Scotia Court of Appeal The Court of Appeal for Nova Scotia (Nova Scotia Court of Appeal or NSCA) is the highest appeal court in the province of Nova Scotia, Canada. There are currently 8 judicial seats including one assigned to the Chief Justice of Nova Scotia. At any ...

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 when they were in the park that night. Ebsary was subsequently tried and convicted of manslaughter. 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." 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, and

Order of Canada The Order of Canada () is a Canadian state order, national order and the second-highest Award, honour for merit in the system of orders, decorations, and medals of Canada, after the Order of Merit. To coincide with the Canadian Centennial, ce ...

recipient

Clayton Ruby Clayton Charles Ruby (6 February 1942 – 2 August 2022) was a Canadian lawyer and activist, specializing in constitutional and criminal law and civil rights. Early life and education Ruby was born in Toronto, Ontario, to Marie (Bochner) and ...

was co-counsel for Marshall, along with Anne Derrick, during the 1989 Royal Commission on Marshall's prosecution. The Crown Counsel'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 disclosure without determination on what may be useful to the defense (that is the defense's duty to decide).

Compensation and aftermath

A separate Royal Commission in 1990, headed by Justice Gregory T. Evans, concluded in June of that year to increase Marshall’s compensation from to a lifetime pension of . His conviction resulted in changes to the ''

Canada Evidence Act The ''Canada Evidence Act'' () is an act of the Parliament of Canada, first passed in 1893, that regulates the rules of evidence in court proceedings under federal law. As law of evidence is largely set by common law, the act is not comprehensive ...

'', which was amended so that any evidence obtained must be presented to the defense on disclosure. Prior to this case, Crown Prosecutor had the discretion to present what they determined to be pertinent to a case. After 1983, the Crown Prosecutor must provide all evidence with no determination on its usefulness. The rationale of the law is that it is more appropriate for the defense to determine what may or may not assist an accused. In response, a

Royal Commission A royal commission is a major ad-hoc formal public inquiry into a defined issue in some monarchies. They have been held in the United Kingdom, Australia, Canada, New Zealand, Norway, Malaysia, Mauritius and Saudi Arabia. In republics an equi ...

was formed to investigate what had caused the miscarriage of justice; this led to an influential case on

judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...

in Canada, ''

Mackeigan v. Hickman ''Mackeigan v Hickman'', 9892 S.C.R. 796 is a leading Supreme Court of Canada decision on judicial independence. The Court unanimously held that to require a federal judge to explain his or her decisions would violate the principle of judicial indep ...

''.

Fishing rights battle

Subsequently, Marshall reached prominence as the primary petitioner in the landmark

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

case '' R. v. Marshall''

999 999 or triple nine most often refers to: * 999 (emergency telephone number), a telephone number for the emergency services in several countries * 999 (number), an integer * AD 999, a year * 999 BC, a year Media Books * 999 (anthology), ''99 ...

3 SCR 456 regarding treaty rights allowing Aboriginal people to catch and sell fish under the relevant treaties. In response to a charge from the Canadian government of catching and selling eels without a license, Marshall argued that his treaty rights superseded federal fishing regulations. The treaty right was established, and Marshall was acquitted.

Subsequent arrests

In January 2006, Marshall faced charges of attempted murder, uttering death threats and dangerous driving following a New Year's Eve party in which Marshall was accused of attacking a man with a vehicle. The charges were dropped after both men agreed to participate in a restorative justice meeting. In 2008, Marshall faced charges of assault against his wife, uttering threats against his wife and her ex-husband and breach of an undertaking.

Death

Marshall died 6 August 2009, in Sydney, Nova Scotia, from complications of a 2003 lung transplant.

Legacy

The

unveiled a statue to honour Marshall in 2010 outside the Membertou Trade and Convention Centre in Sydney, Nova Scotia.

Daniel N. Paul Daniel Nicholas Paul (December 5, 1938 – June 27, 2023) was a Canadian Miꞌkmaq elder, author, columnist, and human rights activist. Paul was perhaps best known as the author of the book '' We Were Not the Savages''. Paul asserts that this bo ...

has suggested renaming the

Cornwallis Charles Cornwallis, 1st Marquess Cornwallis (31 December 1738 – 5 October 1805) was a British Army officer, Whig politician and colonial administrator. In the United States and United Kingdom, he is best known as one of the leading Britis ...

Square in Halifax, Nova Scotia the Donald Marshall Jr. Memorial Park and replacing the

statue of Edward Cornwallis The Statue of Edward Cornwallis was a bronze sculpture of the military/political figure Edward Cornwallis atop a large granite pedestal with plaques. It had been erected in 1931 in an urban square in the south end of Halifax, Nova Scotia, opposit ...

with one of Donald Marshall Jr.

References

{{DEFAULTSORT:Marshall, Donald Jr. 1953 births 2009 deaths 20th-century First Nations people 21st-century First Nations people Canadian activists Canadian people wrongfully convicted of murder Canadian prisoners sentenced to life imprisonment Membertou First Nation people Minors convicted of murder Overturned convictions in Canada People acquitted of murder People from Sydney, Nova Scotia People convicted of murder by Canada Prisoners sentenced to life imprisonment by Canada