Background
Donald Marshall was an Aboriginal youth who was wrongly convicted of murder in 1971. In 1983, the federal government, on the basis of new evidence, referred the case to the Nova Scotia Court of Appeal who overturned the conviction.
The panel which heard the reference included Justice Pace who was the Attorney General of Nova Scotia at the time of the investigation in 1971. At the end of the Court's judgement it was observed that Marshall was largely at fault for his own conviction by misleading the investigation and that "any miscarriage of justice was more apparent than real". This comment had a major effect on the amount of settlement Marshall received.
In 1986, the Nova Scotia government established a royal commission, under the Public Inquiries Act, to investigate the handling of the Marshall case. As part of the investigation the Commission tried to compel the judges on the reference, including Pace, to testify. The judges (Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald, and Leonard L. Pace) applied for a declaration that the Commission had no authority to compel them as they were protected by judicial immunity.
The Supreme Court considered two issues:
- whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case.
- whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867.
The majority held that the judges could not be compelled and that the direction to the Commission was not ultra vires the province.
The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.
The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
The Westray Mine was a Canadian coal mine in Plymouth, Nova Scotia. Westray was owned and operated by Curragh Resources Incorporated, which obtained both provincial and federal government money to open the mine, and supply the local electric power utility with coal.
The Nova Scotia Supreme Court is a superior court in the province of Nova Scotia.
The court system of Canada forms the country's judiciary, formally known as "The King on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.
Donald Marshall Jr. was a Mi'kmaw man who was wrongly convicted of murder. The case inspired a number of questions about the fairness of the Canadian justice system, especially given that Marshall was Aboriginal; as the Canadian Broadcasting Corporation put it, "The name Donald Marshall is almost synonymous with 'wrongful conviction' and the fight for native justice in Canada." The case inspired the Michael Harris book, Justice Denied: The Law Versus Donald Marshall and the subsequent film Justice Denied. His father, Donald Marshall Sr., was grand chief of the Mi'kmaq Nation at the time.
The Court of Appeal for Nova Scotia is the highest appeal court in the province of Nova Scotia, Canada. There are currently 8 judicial seats including one assigned to the Chief Justice of Nova Scotia. At any given time there may be one or more additional justices who sit as supernumerary justices. The court sits in Halifax, which is the capital of Nova Scotia. Cases are heard by a panel of three judges. They publish approximately 80 cases each year.
The Canadian Judicial Council is the national council of the judiciary of Canada, overseeing the country's federal judges.
British Columbia v Imperial Tobacco Canada Ltd, [2005] 2 S.C.R. 473, 2005 SCC 49, is a decision of the Supreme Court of Canada where the Court found that the provincial Tobacco Damages and Health Care Costs Recovery Act, which allowed the government to sue tobacco companies, was constitutionally valid. Imperial Tobacco Canada is an indirect subsidiary of British American Tobacco.
Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373 was a landmark reference question opinion of the Supreme Court of Canada on the constitutionality of the Anti-Inflation Act. In what has become among the most significant federalism cases of the Supreme Court, the Act was held to be within the power of the federal government.
The Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges. Notably, the majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. The reference also remains one of the most definitive statements on the extent to which all judges in Canada are protected by the Constitution.
Reference Re Persons of Japanese Race is a famous decision of the Judicial Committee of the Privy Council, which upheld a Supreme Court of Canada ruling declaring a government order to deport Canadian citizens of Japanese descent to be valid.
Reference Re Firearms Act is a leading constitutional decision of the Supreme Court of Canada on the division of powers regarding firearms legislation and the Canadian Firearms Registry. A unanimous Court held that the federal Firearms Act was constitutionally valid under the federal criminal law power.
Re Therrien, [2001] 2 S.C.R. 3, 2001 SCC 35, is a leading decision of the Supreme Court of Canada on judicial independence.
Peretz v. United States, 501 U.S. 923 (1991), was a Supreme Court of the United States case. The Court affirmed that a defendant in a federal criminal trial on a felony charge must affirmatively object to the supervising of jury selection by a magistrate judge, ruling that it is not enough that the defendant merely acquiesce to the magistrate's involvement in his case for a court to reverse a conviction for this reason.
Beauregard v Canada [1986] 2 S.C.R. 56 was a decision by the Supreme Court of Canada on judicial independence. Notably, the Court found that judicial independence is based partly on an unwritten constitution, and that some institutional independence is needed so that judges can guard the Constitution of Canada. These findings were repeated, with far-reaching consequences, in the Provincial Judges Reference (1997).
R v Marshall [1999] 3 S.C.R. 456 and R v Marshall [1999] 3 S.C.R. 533 are two decisions given by the Supreme Court of Canada on a single case regarding a treaty right to fish.
Winner v SMT (Eastern) Ltd is the last case of the Judicial Committee of the Privy Council that affected Canadian constitutional jurisprudence. The Supreme Court of Canada case, from which it arose, is also notable for summarizing the essence of Canadian citizenship.
Ian Malcolm MacKeigan was a Canadian lawyer and judge. He was Chief Justice of Nova Scotia from 1973 to 1985.
Section 100 of the Constitution Act, 1867 is a provision of the Constitution of Canada requiring the federal Parliament to fix and provide for the salaries for judges of the provincial superior, district and county courts.
