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

More documents

Recommendations

Info

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
Page 2 and 3: Forensic Engineering Servicesfor Ci
Page 4: Donald Marshall, Jr. spent 20 per c
Page 14 and 15: A joint program of the Nova Scotia
Page 16: Quicklaw Research SolutionsThe Lexi
Page 22 and 23: I suspect that in the minds of most
Page 24: The Marshall Inquiry was aWylie Spi
Page 28 and 29: Equity and diversity inthe legal pr
Page 33: The IB&M Initiative:Reflections on
Page 38 and 39: kudosCpl. Craig Marshall SmithRCMP
Page 40 and 41: focus onrecoveryDo you have clients
Page 42 and 43: I recounted this episode recently t
Page 44 and 45: Total Practice SolutionsSucceed wit
Page 46 and 47: SummationJarvis GoogooBarrister & S
Page 48: Financial Strength Ratings: Demotec

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?