Donald Marshall Jr.

Donald Marshall Jr. (13 September 1953 – 6 August 2009) was a Mi'kmaw man who was wrongly convicted 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 put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada."[2] 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.

Donald Marshall Jr.
Born(1953-09-13)13 September 1953[1]
Sydney, Nova Scotia, Canada
Died6 August 2009(2009-08-06) (aged 55)
Sydney, Nova Scotia
NationalityMi'kmaq
Canadian
Known forWrongful murder conviction

Early life

Marshall was born on 13 September 1953 on the Membertou First Nation in Sydney, Nova Scotia. He was the oldest of 13 children of Donald Marshall Sr., the Grand Chief of the Mi'kmaq, and his wife Caroline (née Googoo).[3]

Wrongful conviction

Marshall was sentenced to life imprisonment for murdering acquaintance Sandy Seale in 1971. Marshall and Seale, both 17 years old, a Mi'kmaw and a boy of African descent,[4] respectively, had been walking around Wentworth Park in Sydney, Nova Scotia during the late evening with the intent to "roll a drunk" as stated in his trial. They confronted and attempted to rob[4] 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 for some reason, had murdered Seale.[4]

Marshall spent 11 years in prison before being acquitted by the Nova Scotia Court of Appeal in 1983.[5] 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.[6] 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."[7] This was viewed as a "serious and fundamental error" by the Royal Commission report.[8] Anne Derrick, Q.C., well-known social justice advocate lawyer, worked as Marshall's counsel,[9] 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.[10]

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 disclosure without determination on what may be useful to the defence (that is the defence's duty to decide).

Compensation and aftermath

Marshall ultimately received a lifetime pension of $1.5 million in compensation.[1] His conviction resulted in changes to the Evidence Act in Canada which was amended so that any evidence obtained must be presented to the defence on disclosure. Prior to this case, Crown Attorneys had discretion to present what they determined to be pertinent to a case. After 1983, the C.A. 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 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.

Fishing rights battle

Subsequently, Marshall reached prominence as the primary petitioner in the landmark Supreme Court of Canada case R. v. Marshall [1999] 3 SCR 456 regarding treaty rights allowing Aboriginal people to catch and sell fish under the relevant treaties. The treaty right was established, and Marshall was acquitted.[1]

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 healing circle.[4][7][11]

In 2008, Marshall faced charges of assault against his wife, uttering threats against his wife and her ex-husband and breach of an undertaking.[12]

Death

Marshall died 6 August 2009, in Sydney, Nova Scotia, from complications of a 2003 lung transplant.[13]

Legacy

The Membertou First Nation unveiled a statue to honour Marshall in 2010 outside the Membertou Trade and Convention Centre in Sydney, Nova Scotia.[14]

Daniel N. Paul has suggested renaming the Cornwallis Square in Halifax, Nova Scotia the Donald Marshall Jr. Memorial Park and replacing the statue of Edward Cornwallis with one of Donald Marshall Jr.[15]

See also

References
  1. "Donald Marshall Jr". The Canadian Encyclopedia. Historica Canada. Retrieved 26 February 2016.
  2. Reluctant Hero: The Donald Marshall Story CBC.ca, URL accessed 10 January 2006. Archived 24 November 2005 at the Wayback Machine
  3. Tutton, Michael (29 December 2014). "Funeral for Caroline Marshall-Hobbs, mother of Donald Marshall Jr., to be held Tuesday". Toronto Star. The Canadian Press. Retrieved 2 October 2018.
  4. Grimes, William (9 August 2009). "Obituary: Donald Marshall Jr.: Conviction exposed racism in Canadian justice system". The New York Times. Retrieved 15 April 2017 – via Pittsburgh Post-Gazette. (Original NYT article with 3 September 2009 correction)
  5. "Acquitted in killing, Marshall is jubilant". The Globe and Mail. 11 May 1983.
  6. "Ebsary is found guilty in slaying that cost another man 11 years". The Globe and Mail. 9 November 1983.
  7. "Donald Marshall exonerated of wrongful conviction". CBC Archives. 26 January 1990. Retrieved 14 October 2015.
  8. "Royal Commission on the Donald Marshall Jr. Prosecution" (PDF). Province of Nova Scotia. December 1989. Retrieved 6 May 2016.
  9. Paul, Daniel N. "Donald Marshall Jr: 1971 wrongfull murder conviction". danielnpaul.com. Retrieved 2 October 2018.
  10. "Nova Scotia (Attorney-General) v. Nova Scotia (Royal Commission Into Marshall Presecution), 1989, 2 S.C.R. 788" Archived 10 November 2016 at the Wayback Machine. Retrieved 16 June 2014.
  11. Once wrongly convicted, Marshall faces new woes, The Globe and Mail
  12. Donald Marshall, once wrongly convicted, faces psychiatric check CBC News
  13. "Wrongfully convicted Donald Marshall Jr. dies". CBC News. 6 August 2009. Retrieved 16 June 2014.
  14. "Nova Scotia: Donald Marshall Jr. honoured with statue". CBC News. 28 October 2010. Retrieved 25 August 2017.
  15. Daniel N. Paul (5 August 2009). "A Tribute to Donald Marshall Jr". NB Media Co-op. Retrieved 25 August 2017.
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