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Donald Marshall Jr. after native rights ruling in 2001. (ANDREW VAUGHAN)
Donald Marshall Jr. after native rights ruling in 2001. (ANDREW VAUGHAN)

Obituary

The life and death of Donald Marshall Jr. Add to ...

Like many teenagers, Donald Marshall drank, smoked and hung around the local park with rowdy friends. He might have grown up to become a stalwart citizen, a native leader, an entrepreneur.

We will never know because he lost the chance to realize his ambitions when he was convicted of murder, at 17, and imprisoned for 11 years for a crime he didn't commit. By the time he was finally released on parole in 1982, he was forever damaged by a miscarriage of justice and years of detention.

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And yet, despite the tragedies of his later life, his name is synonymous with the fight for justice for the wrongfully convicted. He broke the trail for others, including David Milgaard and Guy Paul Morin, in challenging the legal system. The 1990 royal commission into his case produced 82 recommendations that fundamentally changed the criminal justice system in Nova Scotia. "He had a huge potential for leadership, which was never crushed by his imprisonment and which enabled him to contribute to the native community in Canada," said lawyer Clayton Ruby, a member of Mr. Marshall's legal team before the royal commission.

A proud Mi'kmaq, Mr. Marshall is also a hero in the battle against racism toward aboriginals in this country. He spent six years fighting discrimination in the courts to challenge the federal government's denial of the historic treaty rights granted to his people by the British Crown in 1760, a case that went all the way to the Supreme Court of Canada.

"He was a really shy person, but he was brave enough to go through the limelight a couple of times to change both the provincial systems and the federal ones and to make very significant changes," said Terry Paul, Chief of the Membertou Nation. "It is a tragic loss not only for me, being a personal friend, but for the aboriginal people across the country.

"He did so much and a lot of people benefited from his difficulties."

Donald Marshall Jr. was born on Sept. 13, 1953, on the Membertou Reserve in Sydney, N.S., the eldest of 13 children of Donald Marshall Sr., the Grand Chief of the Mi'kmaq Nation, and his wife Caroline. Called Junior by his family and friends, he was in line to inherit his father's honorary title.

A rebellious boy and a wild youth, he was expelled from the white school at 15 for striking a teacher and sent to Family Court. Given the choice of working with his father, as an apprentice plasterer, or going to the Shelburne School for Boys, an infamous provincial reformatory, he quit school with barely a Grade 6 education. That gave him lots of free time to join the Shipyard Gang, a bunch of Mi'kmaq toughs who generally made a nuisance of themselves.

Tall for his age, and physically more intimidating than some of the other gang members, Junior, the designated panhandler when money was short for rum and cigarettes, was not above petty thievery. Although there is little if any evidence to suggest he was violent - in fact the contrary seems to have been the case - it is certainly true that Junior was well known to the law, having spent four months in the county jail, when he was barely 17, for giving liquor to minors.

The details of his wrongful murder conviction have been well documented. Sandford (Sandy) Seale, a 17-year-old Afro-Canadian was on his way home from a dance, on May 28, 1971, when he met Donald Marshall by chance in Wentworth Park. The two teenagers were chatting when Roy Ebsary, a man later described as having "a fetish" for knives, and his companion Jimmy MacNeil hailed them from an adjacent street and asked for a light for their cigarettes. In the ensuing encounter, Mr. Ebsary stabbed Mr. Seale, who died of his wounds the next day.

Five days later, Mr. Marshall was arrested and charged with murder. He was processed through the justice system with such haste that he was convicted, after a three-day trial, less than six months after his arrest. Even when the Court of Appeal finally acquitted Mr. Marshall, the judgment was miserly, absolving the police of any responsibility, saying that Mr. Marshall had contributed in large measure to his own conviction and that any miscarriage of justice was more apparent than real.

Eventually, Mr. Ebsary was convicted of manslaughter in the death of Mr. Seale and sentenced to three years in prison, a sentence that was reduced to one year by the Court of Appeal in 1986. He died two years later.

Mr. Marshall had to wait until Jan. 26, 1990, to be completely exonerated when a royal commission called by then-justice-minister Jean Chrétien released its final report. The inquiry, which was chaired by Alexander Hickman, then Chief Justice of the Trial Division of the Supreme Court of Newfoundland, concluded that far from being a perpetrator, Mr. Marshall was the victim of racism and incompetence on the part of the police, judges, lawyers and bureaucrats. "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," the commissioners declared.

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