Not forgetting Donald Marshall: What needs to happen to the justice system in Nova Scotia

Trina Roache
APTN National News
This past week, all the players met in Membertou, N.S. to talk about the state of Mi’kmaq justice 25 years after a Royal Commission into Donald Marshall’s wrongful conviction.

The conclusions?

There needs to be a better reflection, not only of Mi’kmaw values, but of what Mi’kmaw face working in the justice system.

As well as, granting jurisdiction to the Mi’kmaq nation by establishing Aboriginal courts and customary law. For Aboriginal offenders, more programs and services are needed in Nova Scotia.

But what’s really needed is the political will and money to do it.

Although the Mi’kmaw Tripartite Forum meets regularly to talk about justice, this symposium was the first time so many senior officials from all levels of government were in on the dialogue.

Chief Paul Prosper calls this a “huge step” in the right direction. He heads the justice portfolio for the Assembly of Nova Scotia Chiefs.

“Donald Marshall was, and is, a huge catalyst to an ongoing evolutionary change within the criminal justice system,” says Prosper. “I think that’s starting to resonate with all the various stakeholders involved in this symposium.”

Many of those who attended the symposium at Membertou First Nation’s busy convention centre stayed at the adjacent Hilton Hotel. Signs of economic prosperity are evident in Membertou. A new, state of the art elementary school. A growing business park. An empowered community looking towards self-government.

It wasn’t like this when Donald Marshall, Jr. grew up here. Born in 1953, Marshall’s community was poor. Racism against the Mi’kmaq was strong.

And late at night on May 28, 1971, when Marshall witnessed a stabbing in a Sydney park, it was racism that put him behind bars for 11 years. He died in 2009.

“We‘re all aware of what happened to Donald Marshall, Jr.,” says Membertou’s Chief Terry Paul. “He was falsely arrested, falsely charged, falsely convicted and falsely imprisoned for a crime he didn’t commit.”

The opening line of the Royal Commission report reads, “The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983.”

What followed was the Donald Marshall Inquiry and a set of 82 recommendations, 11 of them aimed at addressing systemic racism in Nova Scotia’s justice system.

A recent report by L. Jane McMillan looked at the success and failure of those recommendations over the last two decades. McMillan is the Canada Research Chair of Indigenous People at St. Francis Xavier University.

The recommendations never implemented include establishing an Aboriginal criminal court and justice institute. The latter existed in the 1990s but the report says it “had to close its doors within three years because of challenges to its identity from the mainstream system” and “an overwhelming caseload.”

Other programs have been partly implemented: legal aid funding, a liaison with the bar, a Native Justice Committee and services for offenders after they’ve served their time.

“What has happened in Mi’kmaw communities which is a tremendous success,” says McMillan, “is a creation of the Mi’kmaw Legal Support Network, the evolution of a customary law process, the really significant work of the court workers and the translators have helped Mi’kmaw people in Nova Scotia.”

But there’s still a long way to go.

“Comments we heard (Thursday) were comments we were hearing 20 years ago about the frustration indigenous peoples were experiencing when they encountered the Canadian justice system,” says McMillan. “A lack of understanding, a lack of respect for indigenous traditions and a sort of stifling of the accommodation of their beliefs and practices within the justice system.”

Statistics Canada figures from 2012 show that while Aboriginal people make up just three per cent of the population in Nova Scotia, they make up 11 per cent of those incarcerated.

“I’m not naive enough to believe there’s not still racism in this province,” says Nova Scotia Premier Stephen McNeil. “I think we’re better today than we were. I think we as a province are more open than we were, but we still have work to do.”

The Mi’kmaw Legal Support Network (MLSN) is shouldering much of that work now. It’s an umbrella organization that provides programs to Aboriginal offenders. Mi’kmaw language interpreters and court workers are some of its key services.

“We have come very far,” says MLSN Executive Director Paula Marshall. “There are a lot of progressive programs happening in Nova Scotia. But they by no means address all the gaps.”

And a lack of core funding for the agency is a major challenge.

“The funding that we do have is very piecemeal and project driven,” says Marshall. “That lack of opportunity for future planning because of funding issues limits the types of services we’re able to provide.”

In the premier’s opening remarks at the symposium, he promised to address the shortfall in funding for MLSN. But gave no indication of when, how much money or for how long.

“Talk is cheap,” says Jennifer Cox, an Aboriginal lawyer with Nova Scotia Legal Aid. “I don’t see, or hear, anything coming so I need to come up with different strategies if I want to change some of these issues.”

Cox graduated from Dalhousie’s law school, drawn there by its Indigenous Blacks & Mi’kmaq initiative. It’s produced more Aboriginal lawyers, but Cox says there’s still a wall when it comes to finding a job.

She says there’s only one Aboriginal Crown attorney in the province. And not enough understanding in the courtroom of Mi’kmaw culture and community. Cox says the Mi’kmaw need a strategy for change and it needs to be aggressive.

“The Mi’kmaw community has demonstrated as a nation the capacity to institutionalize Indigenous justice,” says McMillan. “But we’re still many, many steps away. We don’t have a firm commitment from the federal government for example, some quasi commitment from the provincial government.”

As everyone headed back to their offices and daily grind, Chief Paul Prosper has to keep Mi’kmaw justice front and centre.

“There’s a need to chart the course forward,” says Prosper. “The Marshall recommendations are a living document so it’s not a document to be put on a shelf.”

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Video Journalist

Trina Roache brings 18 years of journalistic experience to APTN Investigates. A member of the Glooscap First Nation in unceded Mi’kmaw territory, Trina has covered Indigenous issues from politics to land protection, treaty rights and more. In 2014, Trina won the Journalists for Human Rights/CAJ award for her series on Jordan’s Principle. She was nominated again in 2017 for a series on healthcare issues in the remote Labrador community of Black Tickle. Trina’s favorite placed is behind the camera, and is honoured when the people living the story, trust her to tell it.