SR Vol 27 No 4, October 2009 - Nova Scotia Barristers' Society

Forensic Engineering Servicesfor Civil Litigation LawyersGeotechnology Ltd. is a consulting engineering firm that provides forensic civil engineering, geotechnical, foundationand environmental engineering services to civil litigation lawyers and insurance personnel.Forensic Engineering ExperienceGeotechnology has 36 years engineering investigative experience in Atlantic Canada, western and northern Canada,offshore, and overseas in the UK, Australia and the Caribbean.We have investigated and determined the cause, and assisted in establishing fault, for the six main types of problems anddamage experienced by buildings, civil engineering structures, and property: 1. Structural Collapse and Failure; 2.Architectural Finish; 3. Functional and Serviceability; 4. Hidden Damage; 5. Monetary Losses, Construction Delays and CostOverruns; and, 6. Environmental Contamination.Engineering and environmental investigations have been completed for most types of civil engineering structures: Buildings;Bridges; Wharves and Harbour Works; Towers, Storage Tanks; Dams; Pipelines; Drainage Works; Embankments andEarthworks; Tunnels; Highways; and Motor Vehicle and Industrial Accidents.Professional QualificationsEric Jorden, M.Sc., P.Eng., president of Geotechnology Ltd., has a Master’s degree in geotechnical and foundationengineering from the University of Birmingham, England. He has a first degree in civil engineering from the University ofNew Brunswick, and a diploma in land surveying from the College of Geographic Sciences, NS.Mr. Jorden writes impartial, unbiased reports and opinions based on the facts. His reports are clear, concise and easilyunderstood by non-technical readers. He has published a number of engineering papers and co-authored a book on soils,groundwater and foundation investigation. Mr. Jorden has been qualified by the courts as an expert witness. He is credibleand composed when giving expert testimony, and under cross-examination.Forensic Engineering Services(Case management follows project management principles to ensure thorough, cost effective forensic engineeringinvestigations).1. Preliminary Forensic Engineering Services• Assess the technical strengths, weaknesses and merits of a claim for damages based on existing data andinformation. Outline the scope of a thorough investigation of the problem, if justified by the initial assessment.2. Main Forensic Engineering Services• Carry out field work and laboratory testing to investigate the cause of the problem, the damage to a building orcivil engineering structure, or the reason for the contaminated soil and groundwater. Review engineeringdrawings, and applicable engineering and environmental regulations, codes and standards of good practice.• Analyze, interpret and evaluate the data and investigation findings. Develop conclusions and formulate opinion.• Determine the cause of the damage, or the reason for the contamination.• Recommend and design repair and remedial work. Evaluate repair and remedial costs.3. Additional Forensic Engineering Services• Assist counsel finalize evaluation of the strengths and weaknesses of the damage claim based on the findings ofthe forensic engineering investigation.• Help develop litigation strategy for discovery and trial; litigation support.• Develop lines of questioning for testimony and cross-examination, including questions not to ask.• Attend discovery and trial, assist counsel by listening to opposing witnesses and experts, identify flaws and errors,and the strengths and weaknesses of opposing testimony, develop additional lines of questioning.• Testify as an expert witness at discovery and trial• Review and audit engineering investigations and environmental assessments and reports by others; dispute resolution.More InformationContact Eric Jorden, M.Sc., P.Eng. at Geotechnology Ltd. for more information: Curriculum vitae;fees; publications and major reports; list of forensic engineering and major investigations; typicalengineering investigations for design and construction, and environmental assessments for siteremediation; professional activities; technical associations.Geotechnology Ltd.Forensic EngineersCivil, Geotechnical, Foundation and Environmental Engineers23 Roslyn Dr., Dartmouth, Nova Scotia, Canada B2W 2M2Tel: (902) 435-4939Fax: (902) 435-5840E-mail: ejorden@eastlink.caEric Jorden, M.Sc., P.Eng.Forensic EngineerConsultingProfessional Engineer2 The Society Record

ContentsVOLUME 27 | NO.4 | october 2009theSocietyRecordis published four timesannually by theNova ScotiaBarristers’ SocietySuite 1101-1645Granville StreetHalifax, NS B3J 1X3(902) 422-1491Copyright ©2009Mailed underCanada Postpublications agreementnumber 40069255Return undeliverableCanadian addresses to:PublicationsAdministrator,Nova ScotiaBarristers’ SocietySuite 1101,1645 Granville StreetHalifax NS B3J 1X3lneily@nsbs.org4 A Note from the Editor5 The President’s View6 A Message from Premier Darrell Dexter7 Briefs12 Society News15 Accolades – a new column from the Gender Equity Committee17 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, 25Pullout section — Vol. 34, No. 4 Nova Scotia Law News26 Born of Marshall: the NS Public Prosecution Service – Martin Herschorn QC28 Equity and Diversity in the Legal Profession: the legacy of Donald Marshall Jr.– Emma Halpern, 28– Catherine Meade, 31– Marie Paturel, 32– Heather Chandler, 3233 The IB&M Initiative: Reflections on 20 years – Michelle Williams-Lorde36 Reflections on Recommendation 12 – Naiomi Metallic38 Kudos – Cpl. Craig Marshall Smith, Paula Marshall41 Confronting the remnants of racial prejudice – Parker Donham43 The landmark Marshall treaty case: 10 years later – Dr. Donald M. Julien45 LIANS – Tips from the Risk & Practice Management Advisor46FSC_29655 High Res.pdfSummation – Jarvis Googoo4/7/09 12:20:55 PMinsideEditor:Marla Cranstonmcranston@nsbs.orgGraphic Design:Lisa Neilylneily@nsbs.orgpage 7 page 36 page 38page 43NOVA SCOTIABARRISTERS’SOCIETYwww.nsbs.orgOctober 2009 3

Donald Marshall, Jr. spent 20 per cent of his life behind bars—and countless hours in Nova Scotia’s courtrooms—for a crimehe didn’t commit. He was 16 when arrested for murder, and histrial took just three days. To uncover what went so wrong in ourjustice system, the ensuing public inquiry needed three years tocomplete its work.This December marks 20 years since the Royal Commissionfiled its final report, sparking changes that still reverberate andevolve. While the mourning continues for Mr. Marshall, whodied in August, this fall also marks 10 years since the success ofhis second court odyssey, the Supreme Court of Canada rulingthat reaffirmed centuries-old Mi’kmaq treaty rights to fish for amoderate livelihood.In this special edition, we consider Mr. Marshall’s impact and thelessons learned from both of these major legal turning points.Marla CranstonEditor, Society Record, Communications Officer4 The Society Record

A Message from Premier Darrell DexterIt’s a pleasure for me toparticipate in this commemorativepublication.First and foremost, all Nova Scotiansowe a deep debt of gratitude to thelate Donald Marshall Jr. for his quietstruggle to make the province abetter place for the Mi’kmaq. Hislegacy, through the changes thatoccurred as a result of the RoyalCommission and the 1999 SupremeCourt decision with respect toMi’kmaq treaty rights, has forever changed Nova Scotia—for thebetter.As Nova Scotia’s Premier and Minister of Aboriginal Affairstwo decades after the release of the Royal Commission on theDonald Marshall, Jr., Prosecution report, I am mindful of howthe recommendations have shaped the work of the provincialgovernment—in particular, government’s relationship with theMi’kmaq people of Nova Scotia and how all Nova Scotiansinteract with the provincial justice system.Nova Scotia’s relationship with the Mi’kmaq has changeddramatically in the last two decades. The seeds of thischange were sowed within the recommendations of the RoyalCommission. The recommendation that called for a “Tripartiteforum on Native issues” has evolved into what is now a robustgovernment to government relationship. The cornerstonesof this relationship are the Mi’kmaq - Canada - Nova ScotiaTripartite Forum, the Made-in-Nova Scotia negotiation processand a common approach to Consultation. Today, the Forumserves as a positive example of how we can successfully partnerto address issues of common concern in a manner based onmutual respect, partnership and commitment. Its three partiesare working closely together toward the goal of closing the gapin social and economic circumstances between Aboriginal andnon‐Aboriginal people.Members of the Tripartite Forum are dedicated to improvingthe lives of the Mi’kmaq and recognizing the contributionsthey bring to the province. The efforts of the Tripartite Forum’sseven working committees have resulted in achievements likeincreasing physical activity levels of Mi’kmaq youth, encouragingeconomic development in communities and helping to close thegaps in education and in health.Its evolution has been the result of a building process—buildingrelationships and new partnerships along with a new way ofworking together—one that other provinces and territories arewatching and beginning to replicate.With the signing of an Umbrella Agreement in 2002, the provincebegan to address long outstanding issues of Aboriginal and treatyrights through the Made-in-Nova Scotia negotiation process anda commitment to establish common consultation processes.We have also seen the emergence of a respectful governmentto government relationship between the Assembly of NovaScotia Mi’kmaq Chiefs and the Government of Nova Scotia. Theannual joint meeting of the Assembly and the provincial Cabinetis symbolic of this relationship.The Marshall Inquiry also led to the introduction of a communitybasedapproach to Mi’kmaq justice programs. The Mi’kmaq LegalSupport Network (MLSN) was formed through the tripartiterelationship between the provincial and federal governmentsand Mi’kmaq people—and their combined interest in protectingthe rights of Aboriginal people in the justice system in order toavoid future wrongful convictions.The MLSN is seen as a national leader in Aboriginal justiceand serves as an umbrella organization from which culturallyappropriate justice projects and programs are developed andimplemented. Two core programs currently offered by the MLSNare the Mi’kmaw Court Worker Program (which helps bridgethe gaps and eliminate cultural barriers between the justicesystem and Mi’kmaw people) and the Mi’kmaw Customary LawProgram (a culturally appropriate restorative justice programthat facilitates sentencing circles, community placements andreferrals to other programs and services). These programsare a direct result of recommendations contained in the RoyalCommission.While we are proud of these accomplishments, we recognizethat there is more work to be done.The Province will continue to pursue productive discussionsamong other levels of government, the Mi’kmaq and social,health, economic and justice organizations.We will maintain our focus on encouraging closer relationships thatwill inevitably lead to a greater mutual understanding and respect—with a common interest of building the future of Nova Scotia.The Hon. Darrell DexterPremier of Nova Scotia6 The Society Record

A joint program of the Nova Scotia Barristers’ Society& the Nova Scotia Criminal Lawyers’ Association2009 Criminal Law ConferenceA Criminal Law Smorgasbord: A Meal Unlike Any OtherNovember 20, 2009 | Best Western Chocolate Lake Hotel, HalifaxMorning 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 andSolitary Confinement on Inmates”Register now!For more informationabout this and otherCPD offerings, visitwww.nsbs.org/development.phpThe Nova Scotia Criminal Lawyers’ Association and the Nova Scotia Barristers’ Societypresent A Criminal Law Smorgasbord: A Meal Unlike Any Other. The 2009 Annual FallCriminal Law Conference will serve up a buffet of fresh information on the most cuttingedgetopics!Speakers include: the Honourable Chief Justice Michael MacDonald, the Honourable ChiefJustice Joseph Kennedy, the Honourable Chief Judge Patrick Curran, the Honourable JusticeDavid Watt from the Ontario Court of Appeal and a host of senior members of the Nova ScotiaPublic 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 Universityprofessor, forensic psychiatrist, lawyer and world-renowned expert on the effects of segregationand solitary confinement. Dr. Grassian has been a featured expert on prime-time TV newsprograms 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 CodeThe 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 visitChocolateLakeHotel.comCONTINUING Professional Development14 14 Nova The The Society Scotia Society RecordRecord Barristers’ Society, 1645 Granville Street, Halifax, NS, B3J 1X3 | 902-422-1491 | www.nsbs.org

ACCOLADESTwenty years have passed since the Royal Commission onthe Donald Marshall, Jr., Prosecution indentified the needfor the increased presence of Aboriginal and racializedpeoples in all aspects of the legal profession. As the Marshall Inquirydocumented, the problem is not with Aboriginal peoples or membersof racialized communities but with the values, norms and personalprejudices inherent in a different cultural system. The legal needs ofAboriginal or racialized community members at a community levelare influenced by a number of factors that require knowledge of localculture and traditions, and contacts within that community.In 1989 the Indigenous Blacks & Mi’kmaq (IB&M) Initiative was establishedat Dalhousie Law School. It was hoped that by increasing representationfrom these communities in the legal profession, the effectsof systemic discrimination would be greatly reduced. The Initiative’sobjective is to facilitate access of African Nova Scotians and Mi’kmaqpeople into law school and the profession, while also attempting to addressissues of racism in legal education and the legal profession.Professor Michelle Williams-Lorde joined Dalhousie Law School in2004 as Director of the IB&M Initiative and Assistant Professor. Shebrought with her an incredible background, insight and energy. Bornand raised in Nova Scotia, she earned her social work degree at DalhousieUniversity, her LL.B. at the University of Toronto and herLL.M. at New York University.According to Ms. Williams-Lorde, one of the most rewarding aspectsof the IB&M Initiative is recruiting new students for first-year lawschool. She attempts to meet with each applicant in person or byphone in order to provide support, answer questions and demystifythe application process. She also tries to ensure that each applicantand student realizes the importance and value of his or her presenceat law school. She never ceases to be amazed at the potential that isuncovered, and impressed by what the graduates go on to achieve.Strategies have been developed to encourage entrance into first-yearlaw school. Short-term recruitment involves targeting students whoare ready to apply to law school within a year or so. Contact is madewith universities and student advisors to ensure that all students areaware of the Initiative. Free seminars twice a year focus on the applicationprocess and LSATpreparation.Catherine BentonNova Scotia Legal Aid, BridgewaterLong-term recruitment involvesvisiting high schools, organizations and communities on ageographic basis annually. Ms. Williams-Lorde is always sure to havea few current law students accompany her on these visits. The youngpeople immediately identify and connect with the law students as thepossibilities 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 lawgraduates. With pride, Professor Williams-Lorde notes that whileat law school, these alumni have included three valedictorians, twostudent law society presidents and six recipients of the David JonesMemorial Award, provided to a third-year student who has been thegreatest source of inspiration to his or her classmates.Their contributions have been significant to the legal profession. Theyhave obtained positions as legal counsel to First Nations, provincialand federal departments, legal aid offices and in private firms, whilesome find careers as academics and policy advisors, or participate inthe political arena.Increasing representation from Aboriginal and racialized communitiesin the legal profession will inevitably aid in ensuring that thejustice system is more responsive to and representative of the communitiesit services. The IB&M Initiative has been an incredible andunprecedented success. In memory of the legacy of Donald Marshall,Jr., it is hoped that the justice system will remember its obligation toencourage and ensure access at all levels.We welcome your submission to Accolades! In each column we will showcasea different lawyer, firm, group or association to recognize how theyare effecting change in the profession. Feel free to contact a member of theGender Equity Committee or Equity Officer Emma Halpern at equity@nsbs.org to discuss your submission.October 2009 15

Quicklaw Research SolutionsThe LexisNexis ® Quicklaw service gets you more. Getimmediate access to the most comprehensive content andcommentary available online in Canada. It’s what you needto know, when you need to know it.Know Moreon a need-to-know basis.Premium Canadian Products:• Practice-specifi c content — Criminal, Family,Immigration, Employment, and IP & IT• Halsbury’s ® Laws of Canada titlesInternational Legal Content:• Primary Law Collection including material fromthe U.S. and from the U.K., France, and otherE.U. countries• LexisNexis ® JurisClasseur (France)• Warren’s Forms of Agreements (U.S.)• Atkin’s Court Forms (U.K.)• Encyclopaedia of Forms & Precedents (U.K.)• Mealey’s (U.S.)• Matthew Bender ® (U.S.)• Practice-specifi c international content —Intellectual Property, Labour and Employment,Securities, and TaxationWatch for our rapidlyexpanding online contentavailable on demand.To know more, call1-800-255-5174.www.lexisnexis.ca/quicklawQuicklaw. Know More.LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Matthew Bender is a registered trademark of Matthew Bender Properties Inc.Mealey’s is a trademark of LexisNexis, a division of Reed Elsevier Inc. Halsbury’s is a registered trademark of Reed Elsevier (U.K.) Limited and its affiliated companies. Quicklaw is a trademark ofLexisNexis Canada Inc. © 2009 LexisNexis Canada Inc. All rights reserved.16 The Society Record

irony would have it. He had been a teenager: he was now a 36-yearoldman, struggling to relocate himself in the world.Judge Anne S. DerrickProvincial Court of Nova ScotiaIt is a tradition in Mi’kmawculture that when a persondies, they are not left alonebefore the body is taken from thehome to the funeral. In Donald Marshall Jr.’s case that was particularlyappropriate: Junior did not like to be alone. While there may havebeen a variety of reasons for this, in part it was the effects of prison.That experience, and the wrongful conviction that put him throughit, were etched on his soul. However much Junior transcended thoseterrible events, and the years of struggle that followed his release, hetook the pain of them, locked deep and inaccessible within him, tohis grave. The 20 th anniversary of the Royal Commission of Inquirymust be a time to acknowledge not only the lessons we learned butthe price Junior paid for those lessons.This anniversary will not come for me until January 26, 2010.That was when I took the Commission’s 297 page Report to theMicMac Friendship Centre in Halifax where Junior was holed up,secluded from the press. He was anxiously waiting to hear what theCommission had to say about the wrongs perpetrated against him.He was wondering whether once again he would be faulted for hiswrongful conviction. He had learned through bitter, wrenchingexperience that he could not trust the justice system. He knew theodds did not favour him. Were all the years of agony, including thosein which he watched the grim truth about his case emerge at theCommission’s proceedings, going to have been for nothing? I was notsure that Junior could transcend another devastating blow.By January 1990, I had spent a great deal of time with Junior. I knewintimately how angry and discouraged he was. The burden of hisfight for justice wore on him and weighed him down. He was waryand mistrustful. The Commission was reporting after hearing 89days of evidence, its work spanning a little over three years since itsestablishment in October 1986. For Junior, the nightmare had startedalmost 20 years previously on May 28, 1971—his father’s birthday, asPrison equipped Junior for survival in a hostile and dangerousenvironment. I have a photocopy of his prison photographs—“Inmate 1997”—from 1971 to 1979. There are four of them, mugshots in effect, and they show a teen with some vestiges of adolescentpudginess in his face gradually hardening over time until the linesbecome chiseled and angular, the boy grown tall into a man. Juniorwas scarred by his prison experiences, which, as an innocent manand an Aboriginal person, had been all the more painful to endure.The late Jack Stewart, who in 1982 was the Superintendent of thehalfway house—the Carlton Centre—to which Junior was released,testified before the Commission that all those years of incarcerationdeprived Junior of the normal socialization—“the ability to interactwith people, the ability to think in ... a critical fashion as opposed to... a paranoid fashion”—that he needed for life on the street. Junioremerged from 11 years in prison with no institutional supports,supports to which he would have been entitled had he in factcommitted the crime for which he was imprisoned and been releasedon parole. The corrections system had no precedent and no authorityto intervene in Junior’s case. The Commission observed that it was“difficult to imagine a more tragic circumstance,” noting the “bitterirony” 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 senthim back to society.”Junior was left to his own devices and whatever his friends, familyand professional advocates could do for him. He was described inevidence to the Commission as “very soft spoken. He had a lot ofmistrust 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 hadto try and cope with the corrosive effects of the Court of Appeal’sbegrudging acquittal in 1983 and the compensation negotiations in1983-1984, 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 oneclosest to him personally, I had urged him to believe that this timejustice would be achieved. He had a persuasive case to make that itwould not. If he was hopeful, it was a tiny flickering hope that threwno light into the darkness and turmoil he was experiencing at thetime. He did not really believe the Commission would produce anindictment of the terrible events he had lived for nearly two decades.And so it was a transformative moment, the moment when I wentupstairs to the room he was in at the Friendship Centre and told him,“Junior, you’ve been vindicated: Junior, the Report says the justicesystem failed you at virtually every turn.” I remember that meetingstill, so vividly. For the first time since I had met Junior, there wasvisible relief: it was as though something vast and heavy had beenlifted off him. The unexpected had happened and he was in thosemoments a free man at last.It is that vindication of Junior that I count amongst the most, if notthe most, significant accomplishment of the Commission’s work.Sadly, it was not enough to fully heal the deep wounds inflicted onJunior but it enabled him to move forward with his life in a way thatwas not possible before. It cleared the way for his compensation to bere-evaluated. It gave him the credibility that framed his subsequent18 The Society Record

ole 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 anypeace. Always reticent and reserved about his public profile, Juniorwas happiest in private pursuits and dimensions. Yet he was forced tolive most of the 27 years following his release from prison as a publicfigure. His life became a narrative constructed around his wrongfulconviction. He was a man almost continually engaged in struggle:from his long fight for justice to the treaty rights case. And thenthere was his battle to survive the lethal deterioration of his lungs andthe treatment that saved his life. It was all played out in the publicdomain, the occasions of his triumphs and when he stumbled.Junior did, however, take pride in his legacy and recognized thesignificance of what his sacrifices had achieved. He understoodthat while the Commission’s finding on racism—that he had beenconvicted and sent to prison, “in part, at least, because he was aNative person”—had not drilled down deeply into the bedrock ofthat racism to look at “colonialism, ... wrongful dispossession ofAboriginal lands, ... cultural hegemony, and ... state-sanctionedreligious proselytization, as the basis for systemic racial discriminationin the criminal justice system” (Mary Ellen Turpel/Aki-Kwe, “FurtherTravails of Canada’s Human Rights Record: The Marshall Case,” inElusive Justice—Beyond the Marshall Inquiry, Fernwood Publishing,1992), it opened a pathway for dialogue between the Mi’kmawpeople and government that remained of vital concern to Junior forthe remainder of his life.Immediately after the Marshall Commission’s Report was madepublic, the process for re-evaluating Junior’s compensation, animatedby Recommendation 8 of the Commission’s Report, began withthe establishment of a Royal Commission of Inquiry headed byJustice Gregory Evans. It concluded in July 1990, by which timethe Canadian Judicial Council’s inquiry into the conduct of theCourt of Appeal judges was underway. For Junior, it all required thesummoning of additional energy and reserves. It was now eight yearssince his release from prison and his life continued to be defined byhis wrongful conviction. That he was in time able to assume a freshidentity defending Mi’kmaw treaty rights was a testament to hisresilience and the durability of his cultural connections.Junior’s resilience was tested, at times to its limits, during his longstruggles for justice. Often he felt as though his life was one long,unremitting fight of one kind or another. I wish somehow it couldhave been possible for him to put it all to rest but there alwaysseemed to be another challenge to face. Despite these challenges, itwas Junior’s body, not his spirit, that gave out in the end. Junior hadslipped close to the edge in the past but I, like many others, had notanticipated the end when it finally came.Junior did not dwell in the past but the burden of it remained withhim, even though he was ostensibly a free man. It is a burden wemust now carry in honour of his memory to ensure that the lessonsimparted by his life are not lost or forgotten. And so, when I think ofJunior, as I often do, I remember a complicated and compelling man;a man who could have been filled with bitterness and hatred butwas not. A man who had much taken away from him and left muchbehind, who changed those of us who knew him—and our system ofjustice—for the better.presented by the Risk and Practice Management ProgramSolo and Small firm conferenceNovember 30th | Best Western Chocolate Lake Hotel, 20 St. Margaret’s Bay Road, HalifaxSessions will appeal to lawyers, office managers, paralegals, and legal assistants.Lawyers and staff from all sized firms are welcome.Session Highlights:• 60 Tips in 60 Minutes - Practical tips and ideas for improvedclient service, billing and finances, marketing, technology/practice management, and claims prevention• Legal Technologies for Solo and Small Firms• Business of Law: Improving Your Bottom Line -Understanding Finances, Billing and Profitability• Managing Human Resources - Tips on Hiring, Training andRetaining Staff in Your Law Firm• Organizing Your Electronic Data in a Paperless and E-DiscoveryWorld - Advising Your Clients and Being Prepared Yourself• Role of Risk Management - How it Affects Your Firm’sWell-Being• Vendor ExpoRegister now!For more conference details and to register, visit lians.caRegister before Oct. 30th and save on conference registration and hotel fees!Price: Early Bird Rate: $200 plus HSTAfter Oct. 30th: $250 plus HSTDiscounts for two or more registrants from the same firm!Key speakers include Dan Pinnington, David J. Bilinsky and Deborah E. Gillis QCDan Pinnington LLB/JDDirector of practicePROLawyers’ Professional IndemnityCompany (LAWPRO), TorontoDavid J. Bilinsky LLBPractice Management AdvisorLaw Society of British ColumbiaDeborah E. Gillis QCRisk and Practice Management AdvisorLawyers’ Insurance Association ofNova ScotiaSee LIANS.ca for other notable speakers and bios.October 2009 19

George MacDonald QCMcInnes CooperThe Donald MarshallInquiry was my firstexposure to the role ofCommission Counsel. It wasvery difficult for me to adapt and perform this function, given thatnormally I was a very aggressive adversary for one particular position.My co-counsel, David Orsborn and Wylie Spicer, and I were giventhe task of locating and presenting to theCommissioners, in open hearings, all ofthe evidence that was relevant to the issuesbeing considered by the Commissioners.It was not our task to prove why DonaldMarshall, Jr. had been wrongfully convicted;or to prove that the justice system hadoperated properly. To that end, we were tomake certain that all available evidence was before the Commissionersin order that they could make their findings and decide on theirrecommendations. From time to time it was required that we becomeaggressive for a short period of time with a particular witness, to makecertain the evidence in the possession of that witness was brought out.We attempted, however, to ensure that we did not cross-examine anywitness.addition, various experts and scholars were retained to provide adviceand assistance to the Commissioners who were to make recommendationsconcerning any changes that should be made to the system.In the course of performing our role as Commission Counsel, wenecessarily had contact with Donald Marshall, Jr. He knew who wewere, and that we were the Commissioners’ lawyers, but understandablyhe was cautious about dealing with anyone who he considered tobe part of the establishment.I also had frequent opportunity to speak with his father, DonaldMarshall, Sr., who at the time was the Grand Chief of the Mi’kmaqNation. During those encounters, I came to appreciate the wisdom thatChief Marshall possessed. He assisted me in understanding some ofthe customs and characteristics of the Mi’kmaq. I came to understandthat Mi’kmaq can be very reserved people who react differently, forexample, to aggressive questioning. Once Chief Marshall explained thisto me, I noticed how potential Mi’kmaq witnesses I was questioninghad difficulty looking me in the eye. They reacted the same waywhen being questioned under oath, and I understood how thistimid nature could be misinterpreted to be signifying admissions orattempting to evade giving truthful evidence. This type of informationwas made known to the Commissioners, who took it into accountwhen considering their recommendations. Often, during breaks inthe hearings, Chief Marshall and I would speak and he would makesome very telling observations about what was taking place. I learned atremendous amount from this very accomplished man and at the endof the hearings, considered I had a much greater appreciation of theMi’kmaq people than I had in the past.I had only one encounter with Donald Marshall, Jr.’s mother. Onceall evidence had been presented to the Commissioners, the variousinterested parties were permitted to make closing submissions. FinallyI, on behalf of myself and co-counsel,“...understandably he wascautious about dealing withanyone who he considered to bepart of the establishment.”summed up our assessment of theevents that led to Donald Marshall,Jr.’s wrongful conviction, his ultimaterelease from prison and the eventsthat took place thereafter. Here againI attempted not to be an advocate,but given the evidence that had cometo 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 withMrs. Marshall. She approached me, looked in my eyes, touched myarm and said, “Thank you.” About 10 years later, I was speaking toa large group of lawyers and was asked to recall the highlight of mycareer. I told the story about what Mrs. Marshall said to me.To fulfill our task it was necessary that we meet with everyone whomight have relevant evidence or knowledge. Quite often, those meetingswere held in the presence of potential witnesses and their counsel.Usually we would meet with a witness prior to such witness appearingto give evidence before the Commissioners, and would review in considerabledetail the topics to be considered, and explain the evidencewe understood could be presented through that witness.Given that the Commissioners were asked to determine why DonaldMarshall had been wrongfully convicted, it became necessary to delveinto the system used in Nova Scotia and determine how it worked. InSeveral months before his death, I ran into Donald Marshall, Jr. ata dinner event held on behalf of the Special Olympics. The guestspeaker was Rubin “Hurricane” Carter. Someone told me that DonaldMarshall, Jr. was in the audience to hear the presentation of anotherwell-known wrongfully convicted person. I sought him out. He knewme immediately and we had a very pleasant chat. He said “George, Iam in trouble with the law again.” I expressed the view that he wouldmake out fine. The next word I had was that Donald had died. I believethe pending charges against him were withdrawn.20 The Society Record

I suspect that in the minds of most Canadians, the name DonaldMarshall, Jr. has come to be synonymous with wrongful conviction. Inmany ways, his ordeal and the Royal Commission that bears his nameled the way in establishing the standard by which such cases ought tobe investigated, heard and resolved.Sadly, we have come to know that Mr. Marshall’s saga was not theonly miscarriage of justice in Canada. There have and will be others.We cannot possibly guarantee that innocent people will never becharged, tried, convicted and imprisoned in our country. The systemis, after all, one that engages human beings who may occasionally,despite the best of training and intentions, make mistakes. It seems tome that our job, our responsibility, is to ensure that the name DonaldMarshall, Jr. resonates in each of our souls as a kind of check andconstant reminder of the inherent frailty in this thing we call justice,so that we are resolute in doing our best to ensure the mistakes thatled 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 onCanada’s justice system at practically every level. For that, he and hisfamily, 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 somany others in recalling the years stolen from Donald Marshall, Jr., theimpact 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 tothe Attorney General of Nova Scotia, and the Department of AttorneyGeneral, during all phases of the Royal Commission.Bruce H. Wildsmith QCBarrister & Solicitor, Barss CornerThe Royal Commissionon theDonald Marshall,Jr., Prosecution found“that the criminal justice system failed Donald Marshall, Jr. at virtuallyevery turn from his arrest and conviction in 1971 up to—andeven beyond—his acquittal by the Supreme Court of Nova Scotia(Appeal Division) in 1983.” The criminal system is made up of aseries of checks and balances, all to ensure that the innocent are notwrongfully convicted. The checks and balances are all the more importantwhen the charge is murder and the consequences of a findingof guilt so extreme. Yet, for all the institutional checks and balances,the system is operated by people.Photo by Halifax Chronicle Herald/The Canadian PressWhy did so many human beings fail Marshall? Why did so manypeople otherwise considered competent demonstrate a lack of competencein this case? The Commissioners in their Report found thatthe reason in part was because Marshall was an Indian: “[T]he conclusion[is] inescapable that Donald Marshall, Jr. was convicted andsent to prison, in part at least, because he was a Native person.”Many of those who let Marshall and the justice system down were, orhad been before becoming judges, members of the legal profession.My purpose in this short piece is to illustrate some of the ways inwhich those legally trained with duties to the justice system failedto act appropriately. Perhaps with greater insight into those humanerrors, we who are part of the justice system will carry out our roleswith greater care.Donald Marshall Jr., receives an embrace from his motherCaroline Marshall inside the Sydney Justice Centre on April 13,2006 in Sydney, NS.The Royal Commission found fault at trial with the Crown prosecutor,defence counsel and the trial judge. The lynchpins to the evidenceagainst Marshall were two alleged eyewitness accounts from juveniles:Maynard Chant (a 14-year-old) and John Pratico (aged 16). They botheventually gave statements that they saw Marshall stab Sandy Seale. Butthey had given prior inconsistent statements. The prosecutor, in view22 The Society Record

of the conflicting statements, should himself have interviewed suchkey witnesses separately, before trial. And he should have disclosed tothe defence the contents of prior inconsistent statements.Defence counsel failed to provide adequate professional representationbecause they did not arrange for any independent investigation, didnot interview Crown witnessesprior to the trial and did not seekdisclosure. The defence were alsoaware of prior statements from thekey child witnesses but did notrequest the prior statements. Oneparticularly staggering failure ofthe defence was told to the RoyalCommission: During the trial andbefore the case went to the jury,a group of teenagers read in thenewspaper the account of evidence from Pratico. They knew thatPratico could not have been an eyewitness to the stabbing, as Praticohad been with them at the critical time that night. One of themphoned defence counsel to explain that Pratico had lied. Marshall’slead lawyer cut the caller off, saying “You’re too late.” The defencedid not follow up this lead and did not call these potential witnessesto discredit Pratico.“The Court’s gratuitous commentscreated difficulties for Marshallboth in terms of his negotiationof compensation and publicacceptance of his acquittal.”The trial judge, the Royal Commission concluded, through thecumulative effect of incorrect rulings, denied Marshall a fair trial. Oneparticular misinterpretation of the Canada Evidence Act cost Marshallan acquittal. As noted above, John Pratico had given a statement topolice saying that he had witnessed Marshall stab Sandy Seale. Butin the corridor while waiting to testify, Pratico of his own volitionapproached Marshall’s father and told him that he had lied whenmaking his first statement—he had not witnessed the killing. Marshallsenior 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 thewitness stand and not worry about perjury. When Pratico took thestand, the Crown attempted to introduce evidence of what Praticohad said outside the courtroom. The trial judge refused to permit this.Subsequently, during cross-examination, the defence did bring outwhat Pratico had said outside the courtroom, but the Crown objectedand the judge refused to permit a thorough cross-examination on thepoint. The rulings by the trial judge were wrong—if a complete crossexaminationhad been permitted, the Royal Commission concluded,no jury would have convicted Marshall.Marshall appealed his conviction. Defence and Crown counsel onappeal, as well as the Court of Appeal itself, all committed error.Defence counsel failed to argue that fundamental errors of law occurredduring the trial—this represented, the Royal Commission said, “aserious breach of the standard of professional conduct expected.” TheAttorney General’s department inappropriately allowed the appeal tobe handled by a junior lawyer. That Crown lawyer should have raisedthe erroneous rulings of the trial judge, but did not. And the Court ofAppeal should have reviewed the complete trial record to ensure thatall relevant issues were argued—if the Court had done so, “the errorsby the trial judge were so fundamental that a new trial should havebeen the inevitable result.”Eventually, years later, after a reinvestigation of the case in 1982, areference under the Criminal Code was made to the Court of Appeal.The Royal Commission was very critical of the Appeal Court: It shouldnot have blamed Marshall for his wrongful conviction and shouldnot have vindicated the justice system from any suggestion of failure.The Commission called the conclusion that Marshall was to blame “aserious and fundamental error,” and concluded that the Court shouldnot have in effect “convicted” Marshallof a robbery when he was never socharged, the Court should not havestated Marshall committed perjury, andthe Court should not have selectivelyused the evidence before it as well asinformation not admitted into evidenceto reach its conclusions. Further, onemember of the appeal panel hearing thereference should not have sat as he hadbeen the Attorney General at the timeof the original conviction and appeal. Perhaps most significantly, theCommission thought the Court’s decision “amounted to a defenceof the justice system at Marshall’s expense”—including the nowinfamous comment: “Any miscarriage of justice is, however, moreapparent than real”—notwithstanding overwhelming evidence tothe contrary. The Court’s gratuitous comments created difficultiesfor Marshall both in terms of his negotiation of compensation andpublic acceptance of his acquittal.Lastly, but not least, the Royal Commission took aim at theDepartment of the Attorney General—Marshall “was not treatedproperly” by the Department. The Deputy Attorney General on theReference Case should not have tried to persuade Crown counsel toargue against an acquittal, and Crown counsel himself should nothave argued that the criminal justice was not in any way responsiblefor Marshall’s wrongful conviction when he knew to the contrary.The Deputy Attorney General was also singled out for failing to takeany positive action to determine why Marshall had been wrongfullyconvicted, failing to do any research before advising the AttorneyGeneral not to appoint a public inquiry, and failing to review any ofthe relevant documents before refusing a request by Marshall’s counselunder the Freedom of Information Act. When it came to compensationfor Marshall, the Deputy Attorney General should have consideredwhether it was appropriate for the Province to approach the issuesimply in terms of achieving the best possible financial deal for theProvince, rather than what was fair to Marshall.The above-noted actions or failures by lawyers and judges seemincredible in their totality. That is not to say other actors in the justicesystem—those responsible for other checks and balances—were notat fault. The Sydney Police in the original investigation and theRCMP at various stages of reinvestigation all failed Marshall and thejustice system. But lawyer and judges could and should have ensuredfair treatment of Marshall.Could the same thing happen again today? Do Mi’kmaq in NovaScotia get fair and unbiased treatment? Do the innocent getconvicted? The story of Donald Marshall’s wrongful conviction andhis 11 years in prison serve as a reminder that all who participate inthe justice system must carry out their duties conscientiously, andwith a conscience.October 2009 23

The Marshall Inquiry was aWylie Spicer QCmulti-faceted undertaking.McInnes CooperMost prominent in the publicview were the public hearings into theevents giving rise to the murder of Sandy Seale. Unbeknownst tomost people, there was also a very significant research component tothe Inquiry. Much of the effort of the hearings and of the researchwere directed to exploring how such a grievous mistake could havetaken place in a justice system that wehad thought was designed to preventsuch happenings.The Marshall Inquiry Report was thefirst in Canada to publicly and aggressivelyindicate flaws in the administrationof justice. Junior Marshall wasAboriginal and, as a consequence, wasmarginalized by the justice system.As many of the other wrongful convictioncases in subsequent years demonstrated,marginalization of the alleged offender is a theme runningthrough the piece. To put it another way, Junior Marshall was powerless.The hearings and the investigations of the Marshall Inquirydemonstrated that the justice system was not well suited to properlyand fairly deal with the issues of the powerless and marginalizedpeople in our society.As lawyers working for the Marshall Inquiry, we always considered itour responsibility as counsel to investigate every avenue that mightbe of benefit to the Commission in getting to the core of what hadhappened to Junior Marshall. The Marshall Inquiry touched manynerves as we worked on our mandate. Not surprisingly, one of themore sensitive nerves was struck when the Inquiry asked to speakto the judges of the Appeal Court who had rendered the decision24 The Society Record“The Inquiry was a wake-up callthat was telling all of us in thejustice system that everyonewho gets involved in the systemneeds to be treated with an equalamount of respect. ”involving Junior Marshall. It was never our intention to inquire intothe reasons for the decision written by the Court. We were interestedin establishing the material that was before the Court as part ofthe “record.” There was some ambiguity in the information in thepossession of the inquiry as to what that “record” constituted. Not astep to be taken lightly and, indeed, only taken after obtaining legalopinions on the point to satisfy ourselves that the inquiries to bemade of the judges were appropriate.One of the most troubling aspects of my experience during the Inquirywas the reaction of some of my lawyer colleagues to our request. Therewere not a few lawyers who expressed the view that we had no right totake 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 toget to the heart of what had gone wrong in the Marshall case.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 thoseof our citizens who have been marginalized. The Marshall Inquirydemonstrated that a young Aboriginal person did not get a fair shakefrom the criminal justice system. The Inquiry made recommendationsto try and change the institutional reasons why that injusticehad occurred. The Inquiry was a wake-up call that was telling all ofus in the justice system that everyone who gets involved in the systemneeds to be treated with an equal amount of respect. Unfortunately,many individuals come before the criminal justice system from a lifeof poverty, marginalization and broken families. Being involved inthe criminal justice system is a result and not a cause.The criminal justice system does its best to treat its participants withrespect. As the Marshall Inquiry pointed out, however, it is not alwaysthat easy to ignore the prejudices and attitudes that have developedover time towards the marginalizedand powerless in our society. Theseprejudices are what is called “systemic.”To me, that means that they are partof the system in which we live anddifficult to consciously put aside.The Marshall Inquiry investigationsmade it clear that this systemicmarginalization affected all branchesof the administration of criminaljustice. It is not too hard to identifysomeone who is a blatant racist but itis much more difficult to identify theunsaid and unseen factors that make a society racist. I learned fromthe investigations of the Marshall Inquiry that all of us must do thebest we can to not allow these unsaid and unseen factors to affect usin our privileged positions in the justice system.

trial and to make a full defence. If Crown Attorneys are unclear onany aspect of disclosure they need only consult the policy for a list ofwhat must be disclosed, the timing of disclosure and what to do inexceptional circumstances.The wrongful conviction of Donald Marshall and others acrossCanada has spurred the Public Prosecution Service to make asignificant investment in the development of comprehensiveprosecutorial policy and best practices aimed at avoiding any furtherwrongful convictions. All of our policies are posted on our website foranyone to read at www.gov.ns.ca/pps/.The Marshall experience has also been the catalyst for significantinvestment in Crown Attorney training. When a lawyer choosesa career in criminal prosecutions he or she is choosing a path ofcontinuous legal training and professional development. Our CrownAttorneys must attend our yearly educational conferences and are oftensent to outside conferences, seminars and training sessions on a widevariety of criminal law topics including those relevant to wrongfulconviction. For example, at our recent fall educational conference,Crown Attorneys attended a lengthy session on the disclosure ofpolice discipline records as per the recent McNeil decision out of theSupreme Court of Canada.Our efforts to improve and perfect our processes continue. All NovaScotians, no matter what their background or situation, must haveaccess to justice. Among the initiatives in that vein are our increasingability to provide French language prosecutions, our participationin the province’s much anticipated mental health court and thesharpening of specialized prosecutorial abilities in such areas ascybercrime, sexual assaults and domestic violence.The Nova Scotia Public Prosecution Service has come a long waysince Marshall. We’ve had a few bumps and missteps on the road toimproving and perfecting our processes and we may have a few moreon the journey of continuous improvement. But we are light yearsahead of where we were on May 28, 1971, the day Sandy Seale diedand Donald Marshall began to write a new chapter in Nova Scotialegal history.IAI_DatacenterAd_3.25x4.25.indd 1We ensureyou’re secure.We offer a state-of-the art,professionally managed,secure data centre.5562 Sackville StreetHalifax, Nova Scotia B3J 1L1(t) 442-1540(e) info@internetworking-atlantic.comwww.internetworking-atlantic.com18/09/2009 11:39:06 AMRight Turn?Knowing which way to turn when facing financial turmoilcan make the difference between taking the pressure offand making things even tighter. At Green Hunt Wedlakewe’ve got the experience to help turn things in the rightdirection for your clients. From workouts to restructurings,proposals and bankruptcy solutions, when your clients arein a tight situation, we can help you take the pressure off.www.WedlakeInc.com902-453-660093.800.59_WedlakeAd.indd 1October 2009 25/05/09 27 3:46 PM

Equity and diversity inthe legal profession:The legacy of Donald Marshall JuniorEmma HalpernNSBS Equity OfficerOn August 6, 2009,Donald Marshall Junior,son of the late GrandChief of the Mi’kmaq Nation,passed away in Sydney, NovaScotia. His death has inspiredmany Canadians to reflect on hislegacy, especially the profoundand lasting impact his experienceand his actions have had on thejustice system and the lives ofa great number of individualsin Nova Scotia, Canada andbeyond.In the weeks following his passing,Mr. Marshall has been referred toas an icon, influential figure andactivist. Although these terms are certainly accurate, they do not dojustice to the depth of sacrifice he made nor to his effect on the justicesystem and the struggle to entrench the rights of Aboriginal peoplein Nova Scotia.In a tragic twist of fate, Marshall sacrificed 11 years of his life so thatthe discriminatory attitudes present at all levels of the justice systemcould be brought to light and addressed. He spent much of his youthin prison after being wrongfully convicted of murder in the 1971stabbing death of Sandy Seale in Sydney. He was released in 1982,acquitted in 1983 and finally exonerated in 1989, following the releaseof the report of the Royal Commission on the Donald Marshall, Jr.,Prosecution into the wrongful murder conviction (hereinafter theMarshall Commission Report). The inquiry concluded that Marshallwas a victim of racism and incompetence and that he was failed bythe Nova Scotia legal system at every turn. 1Now, 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 outeel fishing at Pomquet Harbour near Cape Breton Island, he found himselfaccidentally embroiled in a court case that would again require him to make asignificant personal sacrifice so that the Mi’kmaq and Maliseet people in AtlanticCanada would have the right to earn a moderate livelihood from hunting,fishing and gathering. After a lengthy court battle, in 1999 the Supreme Courtof Canada upheld a centuries-old treaty between the Mi’kmaq people and theBritish Crown in acquitting Marshall of illegal fishing.It is important to mention at the outset that given the length (82recommendations, seven volumes, over 1,000 pages) and depth ofthe Marshall Commission Report and the numerous and extensivechanges to the justice system that were brought about as a result of thisdocument, it is virtually impossible to even come close to addressingevery issue in a short article. I have, therefore, selected a few keypoints that pertain directly to my role as Equity Officer and the lensthrough which I view the legal profession, omitting consideration ofmany other aspects that are no less significant for Nova Scotia.At the Nova Scotia Barristers’ Society, the creation of both theEquity Office and the Race Relations Committee, as a direct resultof the Marshall Commission Report, has helped the profession betterunderstand the impact of racism and discrimination and has beena strong force in encouraging the implementation of policies andprogramming dedicated to furthering equality within the profession.Other noteworthy changes in the area of equity within the legalprofession that have been supported by recommendations from theMarshall Commission Report are the creation of the IndigenousBlacks & Mi’kmaq Initiative at Dalhousie Law School 2 , the Mi’kmaqLegal Support Network 3 , and the introduction of diversity as acriterion in hiring policies at all levels of the justice system, frompolicing to the judiciary.These programs and policies are important first steps in demonstratinga commitment to equity and diversity in regard to legal educationand legal support programs, and in acknowledging the importance ofdiversity within the legal profession. Unfortunately, however, despitethese clear steps forward, we still have a long way to go before we cancomfortably say that the racism and discrimination highlighted in theMarshall Commission Report have been sufficiently addressed.It is still the case that the experience of many African Nova Scotianand Mi’kmaq people has illustrated to them that the justice systemis unaware of cultural differences, and remains dominated by whiteEuropean-descended people whose values and norms, notwithstandingthe policies and programming encouraging diversity, unwittingly giverise to discriminatory practices and decision making.2 The IB&M Initiative was created to reduce structural and systemicdiscrimination by increasing the representation of Indigenous Black andMi’kmaq people in the justice system.3 MLSN exists to ensure fair, culturally appropriate treatment ofMi’kmaq and Aboriginal people within the justice system.28 The Society Record

Photo by Winnipeg Free Press/Canadian Press/Ken GigliottiDonald Marshall is shown in Winnipeg, September 15,2000, where he was speaking at a University of Winnipegconference on the politics of imprisonment.October 2009 29

The IB&M Initiative:Reflections on 20 yearsMichelle Williams-LordeAssistant Professor & DirectorIB&M Initiative, Dalhousie Law SchoolIwas asked to submit a briefarticle to the Society Recordhighlighting the 20 th Anniversaryof the Indigenous Blacks& Mi’kmaq (IB&M) Initiative atDalhousie Law School. Not longafter that request, Donald Marshall,Jr. passed away. I had hopedthat Mr. Marshall might be ableto attend our 20 th Anniversarycelebrations, however, we will stillinclude him by honouring hissacrifices and legacy.So upon reflection, andrereading the book JusticeDenied, the report ofthe Royal Commission onthe Donald Marshall, Jr.,Prosecution [Marshall Commission Report] and the 1990 SpecialEdition of the Micmac News, the original focus of this article changed.These sources provided a glimpse into the experiences of DonaldMarshall, Jr., a Mi’kmaq man who was wrongfully convicted of murderand imprisoned for 11 years; and Sanford (Sandy) Seale, a promisingyoung African Nova Scotian who was killed during the same initialincident. Both men were from loving and hard-working families.I cannot say with certainty whether the IB&M Initiative wouldhave been created were it not for the Marshall Commission. I cansay that Mr. Marshall’s experience and the resulting Commissioncontributed significantly to the development and ongoing supportof the IB&M Initiative. Recommendation 11 of the MarshallCommission Report states:We recommend that the Dalhousie Law School’s minority admissionsprogram for Micmacs and indigenous Blacks receive the financialsupport of the Governments of Canada and Nova Scotia, and theNova Scotia Bar. 1Consequently, the IB&M Initiative collectively “stands on theshoulders” of Donald Marshall, Jr., Sandy Seale and the supportersand allies who continue to believe in justice.Dreamers ReachA painting entitled Dreamers Reach was commissioned in the earlydays of the IB&M Programme, as it was then known. The paintingwas 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 theycan, and will, achieve the goals they set for themselves no matter1 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 inthe painting: rising up, facing the challenge head-on. Those thatgreet challenge with the determination to succeed are the onesthat become what they always believed they could be. Ultimately,it is for them that greatness begins in their own hearts with adream and a desire to reach for it…The Fall 1990 Edition of Hearsay indicates that the original paintingonce hung on the atrium wall of Dalhousie Law School, outside of thestudents’ lounge. As a result of various renovations over the years, thepainting ended up in a backroom and was recently rediscovered. Thevibrant image of the revived painting perhaps symbolizes a renewal aswe celebrate 20 years of IB&M success. In that same Hearsay article,then IB&M Director Wayne MacKay considered the success of theIB&M’s first year, concluding that the program was successful butalso that “what we mean by success for this kind of programme is farfrom clear.”20 years of successThere is no question that the IB&M Initiative has been tremendouslysuccessful by many measures. Perhaps the success is best illustrated bythe accomplishments and contributions of the over 110 law graduateswho entered Dalhousie Law School through the Initiative. Alumnipractice in all areas of law including Aboriginal law, tax, corporate,constitutional, criminal, environmental, family, human rights, andlabour and employment. They are in private practice, act as legalcounsel to First Nations, and practise within provincial and federallegal departments and legal aid offices. Some have clerked and pursuedacademic careers or serve as policy advisors combining law with otherdisciplines, while others have entered political life or branched outinto the arts.All of our alumni have their own unique histories and experiencesthat are linked to their communities. As such, they make the legalprofession more representative of the people it serves and the legalprofession more racially diverse. They give back to their communitiesand to the legal profession through serving on boards and committees,developing organizations and volunteering in other ways. Many ofour alumni have chosen to address issues of concern to First Nationsand African Canadians. All alumni are points of access to law for theircommunities, serving as sources of legal information, representation,role models and mentors.Despite the success of our graduates, stereotypes and myths aboutthe IB&M Initiative remain. It bears repeating that students who arerecruited to Dalhousie Law School through the IB&M Initiative jointhe regular first-year class, write the same exams, complete the samework and earn the same LL.B. degree as all other students at DalhousieLaw School. While at the Law School, Black and Aboriginal studentsmake an extraordinary contribution. Our alumni include threevaledictorians, two Law Society Presidents and six recipients of theDavid Jones Memorial Award, bestowed by the graduating class uponOctober 2009 33

greater appreciation of the commonalities our communities share, suchas our pride in this province we call home and our desire to see it prosper.Why has there not been more progress in the appointmentof African Nova Scotian and Mi’kmaqlawyers to the judiciary in the last 20 years?Having now established that a representative judiciary matters, we mustscrutinize why we are not there yet. We have already seen that the problemis no longer one of numbers per se, since there are nearly 100 lawyersin the province who self-identify as Aboriginal or racially visible.Does the problem lie with qualifications? Lawyers appointed to theBench must possess a reputation for integrity, fairness, independenceand impartiality, and a demonstrated knowledge of the law. Surely, aswithin any sampling of 100 lawyers, there must be a certain percentageof the lawyers who self-identify as Aboriginal or racially visible who embodythe above qualities. I would argue that the problem lies not withthese 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 togreater appointment of Mi’kmaq and African Nova Scotian lawyers tothe Bench is years of standing at the Bar. The majority of Aboriginaland racialized lawyers in Nova Scotia are graduates of Dalhousie LawSchool’s Indigenous Blacks & Mi’kmaq Initiative, created in 1989 inresponse to the Marshall Inquiry. Consequently, the majority of theselawyers are generally newer members of the Bar.The Federal Guidelines on Judicial Appointment require candidates topossess a minimum of 10 years at the Bar. The Provincial Guidelines wererecently amended in April 2009 to increase the minimum requirement ofyears of practice from 10 to 15 years at the Bar (though it should be notedthat both the Provincial Court Act, R.S.N.S. 1989, c. 238, s. 5 and FamilyCourt 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 Bartoo high becomes obvious when we compare the number of Aboriginaland racialized lawyers eligible to compete at each of these minimums:Eligible lawyersfrom Aboriginaland racializedcommunities inNova Scotia5-yearminimum asper ProvincialCourt Act10-yearminimum asper FederalGuidelines15-yearminimum asper ProvincialGuidelines72 45 12I am not suggesting that it is wrong to require a minimum number ofyears within the profession as a measure of qualification for judicialappointment. However, if we recognize the importance of havingMi’kmaq and African Nova Scotian judges, we may have to considerbeing more flexible. This might include selecting a minimum that doesnot exclude the majority of eligible candidates from these communities(such as five or 10 years, as opposed to 15 years), or allowing knowledgeof the law to be measured by a combination of years of practice withsome other criteria that demonstrates a candidate’s qualifications.Another criterion for judicial appointment that can tend to createbarriers for African Nova Scotian and Mi’kmaq candidates is service tothe profession. Traditionally this would include writing of scholarly textsand articles on the law, teaching and presenting on the law, participatingin law reform committees and sitting on Bar Council. Lawyers fromhistorically disadvantaged communities may feel compelled invest theirvolunteer hours in ways that serve the particular communities they comefrom. Such service may not always be legal in nature. Even when it islegal in nature, such work may not be valued as highly as service thatcan be characterized as benefiting a particular area of the law, or a legalinstitution.While not a requirement for judicial appointment, there is a generaltendency to prefer lawyers in private practice, subject perhaps to theoccasional appointment of law professors to the Bench. This presentsparticular problems for Mi’kmaq lawyers. Many of the Mi’kmaq lawyersI know work as in-house counsel for Aboriginal organizations or FirstNation governments. In some cases, this is because the lawyer first triedprivate practice and had negative experiences, and found Aboriginalorganizations to be a more welcoming environment. In other cases,some Mi’kmaq lawyers simply see working at the grassroots level asthe best way to achieve positive change for Aboriginal people. Thereare more than 30 Mi’kmaq lawyers working in the province, yet onlyone in private practice, one with the Crown’s office and two with LegalAid. If we want more Mi’kmaq judges, the tendency to appoint lawyersfrom private practice may have to be reconsidered. At a minimum, thelack of retention of Mi’kmaq lawyers within private practice should beseriously studied by the profession.Finally, there may also be a tendency to view a specialization in an areaof law related to a minority community differently. This can hindera candidate from that community’s chances for judicial appointment.For example, I believe that a perception exists that specializations likeAboriginal law are “soft law” and not on par with more traditional areaslike tort or commercial law. A candidate for judicial appointment whospecializes in Aboriginal law may be viewed as less knowledgeable thana candidate who specializes in corporate commercial litigation. First,such a perception may not be warranted. During my time as a lawclerk at the Supreme Court of Canada, I recall one judge exclaimingthat Aboriginal law was one of the most difficult areas of law he hadever encountered. Second, if we believe that appointment of raciallyvisible judges matters, we will have to become educated about, and accordgreater value to, areas of non-traditional practice in which somecandidates may work.ConclusionThe above are some of the reasons why I believe there has been a lack ofprogress in appointing more Mi’kmaq and African Nova Scotian lawyersto the judiciary in Nova Scotia in the 20 years since Recommendation 12was made. I would characterize the problem generally as a failure of theexisting evaluation criteria to account for the particular circumstancesand needs of Mi’kmaq and African Nova Scotian lawyers in theprovince. If we believe that having a judiciary that is representative ofour Mi’kmaq and African Nova Scotian communities matters, thensuch criteria should be reviewed to ensure they are sufficiently flexibleto meet the needs and circumstances of all lawyers in the province. Thiswould not result in “a lowering of standards” for judicial appointment.There are many different ways to measure the qualities we seek in ajudge. It is high time we start exploring these alternatives.October 2009 37

kudosCpl. Craig Marshall SmithRCMP Diversity Policing AnalystPhilip Star QCPink Star Murphy Barro, YarmouthAs a criminal defencelawyer, I have comeinto contact withmany RCMP officers.None of them would be held in higher esteem by me than Cpl. CraigMarshall Smith. Although he is no longer “walking the beat” inYarmouth, I have continued to follow his career.It is truly fitting that Cpl. Smith would end up as the Diversity PolicingAnalyst for the RCMP in H Division (Nova Scotia), as diversitymay best describe the life of this Nova Scotian. Youth worker, busdriver, father, YMCA Director, policeman, educator and author—those are the types of experiences and the knowledge he brings to hiscareer with the RCMP.The range of Craig’s life experiences prior to joining the RCMP, whichdirectly impacts his position, includes much community developmentand serving on the Halifax Regional Police & Black CommunityLiaison Committee and the Multi-Cultural Liaison Committee of theCanadian Association of Chiefs of Police. Craig has been involved inraising awareness around racism, youth and educational needs sincethe early 1980s. In 1994, as the Library Youth Worker at the NorthBranch Library, Craig first brought together Black students and theHalifax Police Services members for a positive exchange.Craig’s work, since being promoted in 2005 into the Corporal’s positionas Diversity Policing Analyst, includes travelling around NovaScotia to better the relationship between the RCMP and the diversecommunities of our province. It has also included partnering with theOffice of African Nova Scotia Affairs, presenting at consultations ineight Black communities and holding career/recruitment presentationsin another 10.In 2007, the Halifax Public Libraries, in partnership with the RCMPunder Craig’s leadership with the HRP, enhanced and revised thisprogram. By 2008, Craig’s unit had received funding to hold sessionsacross the province.Craig coordinates the Commanding Officer’s H Division DiversityAdvisory Committee, which came into existence as a direct result ofthe Marshall Inquiry. This committee provides advice and directionto the Commanding Officer on a variety of issues and concerns.He has lectured to RCMP members and others within law enforcementon the topic of bias-free policing since 2006. Presently, he isin the process of rolling out African Nova Scotian-specific culturalcompetency education to RCMP members across the Division.As a writer and educator, Craig has provided a unique insight intothe African Canadian experience, leaving himself somewhat opento criticism as he has attempted to expose institutionalized racismin the RCMP and Canada. Craig’s 2006 book, You Had Better BeWhite By Six A.M. – The African Canadian Experience in the RoyalCanadian Mounted Police, provided Canadians with a glimpse of theAfrican Canadian struggle for equality in our country. It is the kindof learning tool that can be utilized in classrooms across our countryand 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 tothe Rev. Dr. William P. Oliver Black Wall of Honour. Also devotedto celebrating achievement in sport, Craig is a former president and38 The Society Record

founding member of the Black Hockey and Sports Hall of Fame,and current president of the Society of North American HockeyHistorians and Researchers.In 2009, Craig and his brother Wade created a new website calledblackgreenandredserge.com, which explores African Nova Scotianstories and challenges, and enables businesses and institutions toprovide cultural sensitivity education to their employees.Suffice it to say that I take great pride and pleasure in sending kudosto Cpl. Craig Marshall Smith. He is truly an inspiration to his fellowpolice officers, as well as all Nova Scotians, in helping to eradicateracism.Paula MarshallProject Coordinator, with Dr. DonaldM. Julien, DCL, DHuml, O.N.S.,Executive Director of the Confederacyof Mainland Mi’kmaqMary Jane AbramLegal AdvisorConfederacy of Mainland Mi’kmaqPaula Marshall is theProgram Coordinatorfor the Mi’kmaqLegal Support Network(MLSN) with the Confederacyof Mainland Mi’kmaq. At the province’s 2009 Crime PreventionSymposium in Halifax, Paula was presented with the inauguralJustice Minister’s Award for Leadership in Crime Prevention, for herinvolvement in legal support programs for Aboriginal persons inNova Scotia.This award is presented for outstanding leadership and commitmentto crime prevention and promoting safety in communities. Paula wasrecognized for her involvement in the MLSN from its inception as apilot project in the 1990s to the current province-wide multi-servicelegal support program.Paula has been a strong advocate for youth justice and Aboriginaljustice throughout her entire career. She remained committed to theAboriginal Justice Program and its cultural components throughoutmany changes in its environment. The MLSN has been priviliged tohave Paula involved since 2004, when it came under the umbrella ofthe Confederacy of Mainland Mi’kmaq.Focusing on the integrity and accountability of the programming,Paula is instrumental in MLSN’s continued success by tirelesslyworking to seek and sustain funding for its ongoing operation anddevelopment. She is a current champion for restorative justice,victim services, court worker programming, regulatory offences andreintegration services.The concept of a culturally sensitive approach to justice supportprograms was brought to the forefront during the Marshall Inquiry,after Donald Marshall, Jr. was wrongfully accused and imprisonedfor murder. The Mi’kmaw Legal Support Network built on therecommendations from the inquiry to have Mi’kmaw translatorsin the courtroom, develop sentencing circle protocols, reintegrateoffenders into communities and engage in youth criminal justiceinitiatives.The Confederacy of Mainland Mi’kmaq is a non-profit tribal councilthat provides programs and services to its six member bands and,upon request, to all 13 Mi’kmaq communities in Nova Scotia.October 2009 39

focus onrecoveryDo you have clients facing businessor personal financial stress?BDO Dunwoody Goodman Rosen can help your clients get onthe road to financial stability.Our comprehensive range of services includes:• Business viability, operational and loansecurity reviews• Reorganization and debt restructuring• Corporate wind upsWe offer:• Discreet, professional advice delivered in afriendly and clear manner• Tailored advice to address your clients’specific situationsFrom left to right:Paul G. Goodman, FCA, FCIRP, FIIC - TrusteeMichael J. Connor, CIRP - TrusteeMark S. Rosen, LLB, FCIRP - Trustee• Formal insolvency and restructuringappointments, including bankruptcy (jointassignments where applicable)• Formal proposals under BIA and CCAA• Free initial consultation and off-hourappointments by request• Competitive pricing and manageablepayment termswww.bdodebthelp.ca www.bdo.caHalifaxSydney902-425-3100902-539-9850Toll Free: 1-800-337-5764Toll Free: 1-888-666-5764Email: insol-halifax@bdo.caEmail: insol-sydney@bdo.caAppointments also held in various locations throughout mainland Nova Scotia and Cape BretonWouldn’t it be niceif decisions were so easy?Until then, look to a CAfor the talent and integrityto make the right ones.www.decisionsmatter.caDecisions matter.40 The Society Record

Photo by Sydney Cape Breton Post/The Canadian PressConfronting the remnantsof racial prejudiceReaders of Donald Marshall Jr.’s obituary in the Saturday,August 8, edition of the New York Times would have foundthe 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 anolder 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, andheld 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 eventssurrounding the stabbing whenfirst interviewed by the SydneyCity Police on the night of theincident.”Parker DonhamCommunications Consultant• “That Ebsary and [Jimmy] MacNeil initiated the contact withMarshall and Seale,” and• “That the stabbing was the result of Ebsary’s violent andunpredictable character.”After Marshall’s friends intervened, the New York Times corrected itsobituary and published a gracious retraction September 3. It turnsout the obituary writer had based his faulty account of the murder onJustice Denied, a book by Michael Harris published three years beforethe Marshall Inquiry produced its authoritative report.October 2009 41

I recounted this episode recently to a longtime Sydney resident, adistinguished and fair-minded community leader who lived throughthe murder, Marshall’s trial, his subsequent release and the RoyalCommission. Partway through the story, he cut me off.“Parker, are you absolutely certain Marshall had nothing to do withthe murder?”I was thunderstruck.“___________,” I said. “They found the knife that killed Seale inEbsary’s basement. It still had fibers from Seale’s jacket on it. There isno 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 whoseproject team included a bright university student on a summerwork program. She introduced herself as a Cape Bretoner, and a fewquestions about her family revealed a connection to Marshall, bymarriage. She appeared embarrassed at the revelation.“My family doesn’t talk much about that connection,” she said softly.I asked if she knew anything about the Marshall case.“Not really,” she said.I quickly rattled off a bare outline of the facts: That Marshall wasa shy, inarticulate teenager, completely innocent of any crime. Thatpolice bullied child witnesses into lying on the stand. That when theRCMP reinvestigated more than a decade later, the case fell apartin days. That when the Mounties reinterviewed the untruthfulwitnesses, they were eager to give up the guilty secret they had carriedfor so long. That one of the most thorough Royal Commissions inCanadian history concluded that the justice system failed Marshall“at every turn,” and that this failure was attributable, “at least inpart,” to racism.The young intern was astonished.“I had no idea,” she said. “I just assumed from what I had heard thathe was some kind of terrible person.”Throughout his adult life, Donald Marshall faced white people whojust naturally assumed he was “some kind of terrible person.” Againand again I have heard people who never laid eyes on Donald assertwith 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 Appealpanel, “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] alack of competence in this case?” The commission had an answer: “[T]he conclusion [is] inescapable that Donald Marshall, Jr. was convictedand sent to prison, in part at least, because he was a Native person.”I have a similar question. After a searching inquiry by three justicesof national repute, assisted by lawyers of unimpeachable caliber, haslaid bare all the facts, why do so many Nova Scotians keep wantingto find fault with the boy who suffered this injustice?Why does a well-informed community leader, widely respected forhis fairness, wonder if it was really Marshall who committed the murder?Why does a bright young university student feel ashamed of herfamily’s connection to this man? Why does a capable reporter for theNew York Times find it so easy to believe that Marshall and Seale, anIndian and an African Nova Scotian, were trying to rob Roy Ebsarywhen he stabbed them both, killing Seale?In 2009, our world has progressed to the point that virtually everyoneagrees it is abhorrent to judge anyone on their race. Overt racismis widely regarded as shameful. As the Marshall commission put it,“That racism played a role in Marshall’s conviction and imprisonmentis one of the most difficult and disturbing findings this RoyalCommission has made.”To white people, this feels like progress, and no doubt it is. The dayswhen my friend’s kindly Sydney Mines grandmother would throwout the dishes on which she served tea and biscuits to a Mi’kmawpeddler are well behind us.Yet, ironically, the very stigma we attach to racism makes it that muchharder for us to confront the remnants of racial prejudice lurkingwithin us.Mi’kmaq do not regard Donald Marshall as “some kind of terribleperson.” They hold him in high esteem, notwithstanding thepersonal struggles he endured following his release from prison. Theyunderstand, instinctively, what he went through, and the role thatracism played. They know how much of the progress Mi’kmaq havemade since 1971 rests on his shoulders. They recognize the grace withwhich he bore that burden, and the toll it took.This is the ultimate paradox of the Marshall case: We seek to blamethe 17-year-old Donald Marshall for his wrongful conviction, andwe take thinly disguised satisfaction at the troubles he experiencedin later life, because, otherwise, we would have to acknowledge thatour culture is steeped in racism—and racism is a terrible thing. So weseek to shift the blame, “at least in part,” to young Donald and hisadult incarnation.Racism is a terrible thing. The Royal Commission on the DonaldMarshall, Jr., Prosecution did us a great service by recognizing therole it played. It remains for us to face the role it still plays, and inthat, Nova Scotia has a ways to go.Parker Donham wrote a two-part book section on the Marshall casefor the October and November 1988 editions of Reader’s Digest. Hefrequently wrote about the case, and the Nova Scotia government’sresponse, in his Halifax Daily News columns. A 1984 lawsuit againstDonham and the CBC for remarks he made on the radio programSunday Morning, criticizing the police chief of Sydney, muted mostpress commentary about the case for two years. The lawsuit wasabandoned on the eve of trial, unleashing a torrent of press commentcritical of government inaction and leading to the establishment ofthe Marshall Commission. Donham now works as a communicationsconsultant with the Kempt Head Institute, and maintains a blog atcontrarian.ca.42 The Society Record

The landmark Marshalltreaty case – 10 years laterDr. Donald M. JulienExecutive DirectorThe Confederacy of Mainland Mi’kmaqMi’kmaq acrossNova Scotiaare celebratingthe 10 th anniversary ofthe historic Marshall courtdecision. On September17, 1999, the SupremeCourt of Canada ruledthat Mi’kmaq people havethe treaty right to fish andsell their catch to earn “amoderate livelihood.”With this Marshall decision,Mi’kmaq in NovaScotia won a victory in theongoing struggle to haveMi’kmaq treaty rights andAboriginal rights recognizedand implemented.From 1927 to 1951, the Indian Act made it illegal for First Nations tohire a lawyer or raise money to commence legal proceedings againstthe government. The Marshall case marked the first time since therepeal of those sections of the Indian Act that Mi’kmaq in Nova Scotiaacted in unity to engage in a legal action to uphold treaty rights.The aftermath of the decision led to a violent clash between FirstNations and non-native fishers and the Department of Fisheries andOceans over implementation of the Marshall decision. As a result ofthe decision, the majority of Mi’kmaq bands in Nova Scotia are nowengaged in the commercial fishery under interim fishing agreementsnegotiated with the federal Crown. The Marshall decision andsubsequent interim agreements created jobs and assisted in therecreation of the Mi’kmaq fishery. The next step is for the Mi’kmaqof Nova Scotia to exercise their treaty right and fish as a unified nationwithout 13 separate interim agreements and free from violence andharassment.The Mi’kmaq continue the daily struggle to achieve the recognitionand implementation of Aboriginal and treaty rights.The impetus for the legal battle forfishing rights was Donald Marshall, Jr.,who passed away on August 6, 2009,due to complications from a 2003lung transplant. The outpouring ofcondolences and support to the Marshallfamily acknowledges and highlights thecommunities’ and Mi’kmaq leaders’recognition of the important roleMarshall played in the recognition oftreaty rights.In support of Donald Marshall, Jr.,a court challenge had been launchedsupported by all 13 Chiefs in NovaScotia operating under the umbrella ofthe tribal councils, the Union of NovaScotia Indians and the Confederacy ofMainland Mi’kmaq. It was a landmarkaction of unity by the Chiefs across theprovince, who organized and supportedDonald Marshall in a lengthy andexpensive court battle in order to havethe 1760-61 Peace and FriendshipTreaties recognized.Donald Marshall Jr., accompanied by Mi' kmaq Grand Chief Ben Sylliboy, right, andhis cousin, Chapel Island Chief Lindsay Marshall, left, walks through Sydney, NS, in apeaceful protest over Aboriginal fishing rights, on September 28, 2000.October 2009 43Photo by The Canadian Press/Andrew Vaughan

Total Practice SolutionsSucceed with More.Know More.Win More.Do More.Find More.See why more of your colleagues use Quicklaw than any other online legal research service.Create an air-tight theory of your case withaward-winning CaseMap ® case analysis software.Achieve better business results with PCLaw billingand accounting software.Promote your firm to potential new clients with alisting on Canadian-Lawyers.ca.LexisNexis ® . Delivers More.LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. CaseMap is a registered trademark of LexisNexis CourtLink Inc.PCLaw is a trademark of LexisNexis Practice Management Systems Inc. Quicklaw is a trademark of LexisNexis Canada Inc. © 2009 LexisNexis Canada Inc. All rights reserved.Certified Court Reporters for:Federal Court of Canada TrialsTax Court of Canada TrialsTransportation Appeal Tribunal HearingsNova Scotia Utility and Review Board HearingsExaminations For DiscoveryWe provide daily transcripts upon requestWe have extensive overseas experience.We do not charge expenses for Toronto area discoveries.PROFESSIONAL CourtREPORTING ANDTRANSCRIPTION SERVICESServing the legal community since 1983Drake Recording Services Limited1592 Oxford StreetHalifax, Nova Scotia, B3H 3Z4ph: 1-902-421-1913fax: 1-902-422-6336e-mail: mark@drakerecording.comCall us Toll Free: 1-866-421-191344 The Society Record

LIANSTips from the RISk & Practice management Advisorby Deborah E. Gillis QCRisk and Practice Management AdvisorSuccession planning for sole and small firm practitionersAt the Nova Scotia Barristers’Society’s 2009 Annual Meeting,The Business of Law DuringTimes of Uncertainty, a number ofsole practitioners participated in theprogram Succession Planning for Sole& Small Practitioners offered by myselfand Stephen P. Gallagher. One of ourgoals for the program was to providea forum that might help programparticipants to continue this importantprocess of putting a succession plan inplace.Early in our program, we asked our participants to think about some verydifficult questions. What would happen (both professionally and personally)in the event of your incapacity, your long-term disability or your death? Whatwould happen to your practice and your livelihood?Our group seemed to agree that planning for such contingencies was animportant process, but not an easy one. We suggested that lawyers need tobegin their succession planning in terms of a series of developmental stepstaken over a period of time.WhySuccession planning is important not only for retirement and death butalso for disability. What would happen to your clients and your practice if,tomorrow, you were struck with an illness that resulted in your being awayfrom the office for an extended period of time? Would you have a practice toreturn to, upon your recovery?To avoid the chaos, the added expense and the tremendous stress that resultwhen no plan is in place for any of these happenings, it is important that youbegin now to put a succession plan in place.Developing an action planProgram participants were asked to try to get started on their own action plan.We tried to identify specific projects for individuals to get their successionplanning started and encouraged them to set specific goals for themselves.It is important to keep in mind that a succession planning initiative itself isintended to:• protect your client’s interests;• minimize financial risk and emotional upset to your family; and• maximize the value of your practice.Specific goals to consider when planning for successionWhen developing your succession plan, I recommend that you start with thefollowing specific goals:1. Identify and come to an agreement with an assisting lawyer—onewho will step in and deal with your practice either on an emergencyor a long-term basis in the event of your death or disability;2. Organize your practice and your files to allow for an orderlytransition of your practice;3. Review trust account balances—determine why funds are still beingheld in trust and disburse where possible. Make any necessaryapplication to dispose of undistributed trust funds;4. Develop file retention and destruction policies and review yourfiles to determine• what can be culled from files;• what must be maintained; and• who will keep your closed files when you retire or on yourdeath;5. Remember to consider Client ID Regulations [see Regulation4.5] and other Legal Profession Act Regulations, including thoserelating 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 aspersonal life, disability and business expense coverage, todetermine if what you have is adequate and how your retirementmight impact this coverage.ResourcesTo assist you in this planning, I have prepared a comprehensive package ofsuccession planning resources including articles, checklists, forms and sampleprecedents. This package is available through my office.As well, in the coming weeks, Stephen Gallagher and I intend to facilitatea telephone conference call with sole or small firm practitioners who areinterested in hearing from other lawyers on their own succession plans, andto 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 dgillis@lians.ca or 902.423.1300 (ext. 345).October 2009 45

SummationJarvis GoogooBarrister & Solicitor, Halifax46 The Society RecordAt times, we have all chosenthe paths we took inlife for a multitude ofreasons. Other times, we followthe paths for no reason at all other than it may have felt right to do atthe time. I was not one of those people who went to law school becauseI had nothing better to do after undergrad. Halfway through myfirst degree, I decided upon law school for my own grounds. Amongmy many motivations, my strongest was my cousin, Donald MarshallJunior.Growing up, Junior’s story of his wrongful conviction was commonknowledge amongst my family, as well as to the Mi’kmaw nation. I wasalways 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 murderhe did not commit. But it wasn’t until I started reading bits andpieces of the Royal Commission and otherarticles in undergrad that I learned it wasmore than just a police office who wrongedJunior; it was a whole system plagued withracism.Junior’s first legal battle falls into a third categorymany of us have been fortunate enough not to encounter: nochoice! Events unfolded and catastrophic fate took place, and it sawJunior’s freedom and liberty wrongfully taken away for 11 years. A fewyears after the Royal Commission, Junior’s next legal battle was hischoice; Mi’kmaw treaty rights! Knowing full well what our ancestorswere promised by the Crown, Junior chose commercial fishery and tofight 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, andhe passed away on August 6.The recommendations, changes and impacts from both the RoyalCommission and the 1999 Supreme Court of Canada decision are farreaching and enduring on so many levels: from changes to the Canadiancriminal justice system and judicial independence to Mi’kmawparticipation in the Atlantic commercial fishery, and from professionalethics and responsibility to academia and scholarship, to name but afew. So much has happened and will continue to take place because ofthe events in the life of Donald Marshall Junior. Whether it was tragicchance or honourable choice, the impacts of these two significant episodescontinue to reverberate to this day. As one of my peers stated, hedid more in law without a law degree than most people who hold one.With Junior’s incredible story in mind, I went to law school, hopingto be able to make even a fraction of the impact that Junior has had onthe 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. AlthoughI live life without regrets, I never did get the chance to tell Junior howmuch I respected and admired him, or what a great inspiration he wasto me and to so many others who believe in justice and rights. Afterhe passed away, doubts filled my mind about my decision to never tellJunior how I thought about him. I was so awestruck and humbled byhis battles with the wrongful conviction and Supreme Court of Canadacase, and how he conquered them, that I never had the courage to tellhim that I chose to go to law school because of him.But over the next few days after Junior’s passing, those closest to himtold me that he was proud of me for going to law school and becominga 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 withpride and my eyes watered deeply when I learned that my hero thoughtabout me in such high regard. The feeling was mutual.Throughout the services, I reflected over and over again about howbetter off countless lives, communities and systems have becomebecause of the sacrifices of Donald Marshall Junior. Whether throughlaw school, the Canadian criminal justicesystem, commercial access to the fishingindustry or just taking up the fight for thegood cause, so many people—Aboriginaland non-Aboriginal, members of variousBar Societies, those involved with theadministration of justice and those whobelieve in change, just to name a few—have been affected, directly orindirectly in some manner or another, by the long-lasting legacy ofDonald Marshall Junior. To play an important part in another person’slife is always commendable. But to play a part that entails great andincredible changes for law, policy and commerce, entities that governand influence so many people on so many levels day in and day out, isnothing short of awesome and amazing.“ … I never had the courage totell him that I chose to go tolaw school because of him.”As all the recommendations of the Royal Commission are yet to befulfilled, and Aboriginal participation in the commercial fishingindustry of the Atlantic provinces continues to grow, the events inthe life of Donald Marshall Junior will continue to evolve numerousaspects of our societies. Like many people, at times I ask myself if itis possible for one person to make a great difference in the lives ofso many others with such a powerful magnitude of change. My firstanswer to that question will always be Donald Marshall Junior.

October 2009 47

Financial Strength Ratings: Demotech, Inc. A” | Fitch Ratings A+ | LACE Financial A | Moody’s A2Over the past 100 years, Stewart Title has become one of the largest, most reliable title insurancecompanies in the world. However, global presence and financial strength tell only half the story. It’s howwe work with legal professionals that sets us apart. A solid history of initiatives to support the legalcommunity is a hallmark of our company.We are continually investing in both technology and people to streamline the real estate process, andgive you the resources you need to handle transactions faster and more efficiently. Unparalleledinformation technologies and the Examining Counsel Program are only two of the ways we make iteasier for legal professionals. Experienced underwriters and claims counsel who are there when youneed them is another.At Stewart Title, we know it’s our relationship with our clients that determines our success. That’s whyservice is the foundation of our business and integrity, the keystone in all our dealings.Call us today or visit www.stewart.ca.Canadian Head Office (Toronto): (888) 667-5151 Atlantic Canada: (888) 757-0078Western Canada: (866) 515-8401 Québec: (866) 235-915248 The Society Record