What the Accused Donald Marshall Jr. Was Charged and Convicted - Essay Example

R.v. Marshall Affiliation Baasam Alhusayni The core concept of this paper is to give an in-depth explanation of the landmarkcase of R. v. Marshall Supreme Court of Canada, which is related to natural resource violations of the aboriginal people with relation to Aboriginal treaty rights and environment. This essay seeks to provide a comprehensive description of what the accused Donald Marshall Jr. was charged and convicted which he had overturned on the behalf of the Mi’kmaq people, affecting all treaty Aboriginals. In the following paragraphs will give a brief background of how Donald Marshall Jr. was accused of wrongful murder prior to the natural resources case. First of all, the case of R. v. Marshall is a violation of the Mi’kmaq treaty. A treaty is a Written agreement between two parties; however, in this concept it is an agreement between the government and Aboriginal nations. Historically, there have been many Aboriginal nations/tribes that entered into treaties with the British government for many purposes. Some of the reasons are: peace agreements, the protection of indigenous land claims, or a guarantee of the right to continue their traditional hunting, fishing and gathering lifestyle. Thus, “Agreements give rights and obligations to both the current government and the Aboriginal nation who signed the treaty. Natural resources are defined as materials or some substances that could be minerals, forests, water that can be used for economic gain.” Moreover, in reference to Aboriginal rights in natural resources, Section 25 of the Charter of Rights and Freedoms provided that, “it shall not be construed so as to erode Aboriginal and Treaty rights or rights assured under the Royal Proclamation.” This illustrates that the treaty protected Marshall in the context of the Aboriginal rights of the natives in Canada. In addition, Aboriginal and Treaty Rights are two types of rights protected by section 35 Of the Canadian Constitution: “aboriginal rights and treaty rights (which include land claims).Section 35 of the constitution states: (1) “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. (2) In this Act, "aboriginal peoples of Canada “include the Indian, Inuit and Métis peoples of Canada. (3) for greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.” This section of the constitution seeks to protect the Aboriginal rights of the people of Canada. Donald Marshall Jr. was a Native to the Mi’kmaq tribe in Sydney Nova Scotia, prior to his landmark case he was a victim of wrongful conviction of a murder that he did not commit. On the night of May 28, 1971, Sandy Seale, a 17 year old teen, was fatally stabbed in Wentworth Park in Sydney, Nova Scotia. “Sergeant of Detectives began his investigation, he developed a theory that Marshall stabbed Seale; he sought evidence to support this theory, discounting Marshall’s description. Unsatisfied with the version of events offered by two teenage witnesses one of whom was on probation, while the other had mental health issues, police re- interviewed the 14 and 16 year old boys, using oppressive questioning tactics and coerced untrue statements that formed the basis for charging Marshall.” (The Wrongful Conviction of Donald Marshall, Jr.). It was known that in the 1970’s there have been a lot of racial stereotypes among minority groups. Donald Marshall Jr. was a clear case of racial profiling. In 1974, “Ebsary’s daughter told the Sydney Police that she saw her father washing what appeared to be blood from his knife on the night Seale was murdered. The police told her the case was closed and they did not share this new information. In 1981, Marshall learned in jail that Ebsary had admitted to killing Seale, so his new lawyer asked police to reopen the case.”(The Wrongful Conviction of Donald Marshall, Jr.). In 1985, after three trials, Ebsary was convicted of manslaughter for the murder of Seale. He was initially sentenced to three years’ imprisonment, which was reduced to one year by the Court of Appeal in 1986.Before discussing the details about the case, he appealed the decision twice before they ruled in his favor. Donald Marshall never gave up on his rights as an Aboriginal and fought a long battle before he won. First of all, he was rejected at the Nova Scotia Court of Appeal. Marshall “appealed the decision to the Nova Scotia Court of Appeal, where he lost again and his conviction was upheld.” After this failed the previous attempt, he applied to appeal at the Supreme Court where he was granted the chance to present his case. Marshall “Appeal to the Supreme Court of Canada at the Supreme Court, Mr. Marshall argued that Judge Embree was wrong and that the Treaty gave him a right to hunt, fish and gather products for trading, and that these rights survived the disappearance of truck houses. Mr. Marshall argued that the written terms of the Treaty did not represent the entire agreement between the Crown and the Mi’kmaq, and that the historical context, evidence of the negotiations process, and expert evidence demonstrated that there were unwritten terms that had been agreed to orally and not written down by the Crown. “In lieu of the wrongful conviction the case of R. v. Marshall: Supreme Court of Canada, is a Canadian land mark case, it recognizes Aboriginal Treaty Rights to Trade in Fish. In August 1993, Donald Marshall Jr., a tribe member of First Nation, was stopped while fishing in Pomquet Harbour near Antigonish. On his accusations his equipment was seized by the police. The “police caught Marshall with about 210 kilograms of eels, which he sold for 5 $787.10.” (Aboriginal Affairs and Northern Development Canada, 1999) Prior to this case he was charged with fishing without a license, selling eels without a license and fishing during a closed season. Marshall claimed that he was allowed to catch and sell fish by virtue of a treaty signed with the British Crown that was granted immunity dating back as far as 16th century. This is supported by the fact that natives had the belief that these treaties were to be passed to all descendants of the original signees, but not just Indians. Under the crowns regulations where Donald Marshall was charged there contained no limited on the Minister of Fisheries. This was known to section 35 of the Constitution act. The court did mention that the regulations could be limited to the treaty of the Mikmaq people; this is similar to the R.V. Sparrow case. On “September 17, 1999, the Supreme Court of Canada released a landmark decision, recognizing the constitutionally protected treaty rights of the Mi’kmaq Indians in Nova Scotia to catch and sell fish. Since that time, a number of other aboriginal groups on both the East and West coast have claimed similar rights.” (Caldwell, 1999) The Court found that “Mikmaq and Maliseet people on the East Coast continue to have treaty rights to hunt fish and gather to earn a moderate livelihood. These rights flow from the Peace and Friendship Treaties signed in 1760 and 1761 between the British Crown and the ancestors of the Mikmaq and Maliseet.” (Aboriginal Affairs and Northern Development Canada, 1999) Furthermore, the court have come to a decision that Donald Marshall have the right to the moderate livelihood by exercising his aboriginal rights to hunt, fish and gather natural resources. Provincial Court Judge Embree was the trial judge that was residing on this case. Embree accepted that the Treaty was supposed to give the Mi’kmaq the right to continue their traditional hunting, fishing and gathering lifestyle. Throughout a lot of hours in dissecting the treaty and rights of the people it became clear that the British wanted the Mi’kmaq to be self-sufficient. This desire, along with their desire for peace, was underlying the Treaty. On the contrary the court also made a point that didn’t allow him use his aboriginal rights to purse unlimited finical and economical gain through his catching’s. Within the treaty there was a trade clause action The “trade clause” of the Treaty reads as follows: “This is affirmed by the fact that the right of Aboriginals and Treaty rights in hunting and fishing is not absolute according to the section 88 of the Indian Act. Provincial laws of general application do apply to control the Aboriginal rights. The section states “fish and wildlife related charges pertaining to the aboriginal community are ‘pre-screened for validity.” Within the treaty there was a trade clause action, The ‘trade clause’ of the treaty reads as follows “And I do further engage that we will not traffic, barter or Exchange any Commodities in any manner but with such persons or the managers of such Truck houses as shall be appointed or Established by His Majestys Governor at Lunenburg or Elsewhere in Nova Scotia or Acadia.” The officers who were in charge of charging Marshall states were upset at the fact of the first nations using the treaty’s as a source of an income rather than a source of a living. Some may have not found it fair that they could use their rights as a quick source of income, while others struggled to earn a living. Conclusion In conclusion, Donald Marshall Jr, made a large impact for the course of history of the Aboriginal peoples. His life was a whirlwind of unruly events that eventually changed the treaty rights of the aboriginals of Canada. The major breakthrough was in the R.v. Marshall case was “Tribe of Indians shall not be hindered from, but have free liberty of Hunting and Fishing as usual and that if they shall think a Truck house needful at the River Chibenaccadie or another place of their resort, they shall have the same built and proper Merchandize lodged therein……” In closing in the course of Donald Marshall’s life he was charged, convicted and served time for a murder that he did not commit. He was exonerated and then charged, he also has his rights stripped where he made a landmark case against the government where he changed the course of Aboriginal history in Canada. References Aboriginal Affairs and Northern Development Canada. (1999, November 17). Retrieved March 9, 2015, from Government of Canada: Retrieved From https://www.aadncaandc.gc.ca/eng/1100100028614/1100100028615 Caldwell, B. (1999, November). R. v. Marshall: Supreme Court of Canada Recognizes Aboriginal Treaty Rights to Trade in Fish. Retrieved March 9, 2015, from Fisheries Law: http://www.admiraltylaw.com/fisheries/Papers/treatyrights.htm R. v. Marshall: Supreme Court of Canada (Supreme Court of Canada September 17, 1999). R. v. Marshall (1999) (Court of Appeal for Ontario 17 1999, September). Marshall, J. B. (n.d.). Union of Nova Scotia Indians. Retrieved March 12, 2015, from The Marshall Decision: http://www.unsi.ns.ca/about/accomplishments/4/ The Wrongful Conviction of Donald Marshall, Jr. (n.d.). Retrieved March 9, 2015, from http://www.nsbs.org/archives/unpublished/81150.pdf Read More