I met Donald Marshall Jr. just once, 19 years ago, but by then he was already a legend.
It was, I recall, a pleasant summer day. That was not why he kept the front and balcony doors open at his Spring Garden Road apartment building.
Eleven years in jail for a crime he didn’t commit had taken its toll: he was plagued by nightmares; at night he couldn’t sleep unless the lights were on, as they so often were in the penitentiaries at Dorchester, N.B., and Springhill, N.S.
He's our Martin Luther King. Our hero. Our light in the sky.
- Jim Maloney, chief investigator, Donald Marshall inquiry
Marshall told me that when the claustrophobic walls really closed in he couldn’t even park his truck in the building’s underground parking lot.
Over the years I’ve only met two people who, because they simply had to, keep their dwelling doors open all the time: a doctor who spent days underground during one of the Springhill mine disasters, and Marshall who went into jail as a five-foot-10 teen, and emerged, 133 months later, as a six-foot-one adult.
A diminished man stood before me 19 years later. The chronic respiratory disease that soon would require a double lung transplant, had left him thin and frail.
Yet, I remember the weary dignity with which he carried himself and his touching hope that after the tumultuous life he had led he could finally live peacefully and quietly among his neighbours.
I bring all of this up because Marshall’s name is everywhere today, as it was when I went to see him soon after the court decision that bears his name.
He died 11 years ago, but you wouldn’t know it, his legacy still burns so bright, as it does for giants.
Inspiration and tragedy
“He's our Martin Luther King. Our hero. Our light in the sky,” old friend Jim Maloney, who was the chief investigator in the government inquiry into Marshall’s wrongful conviction, calls him. “You can’t mention treaties without Marshall, freedom without Marshall, justice denied without Marshall.”
Archie Kaiser, a Dalhousie law professor, and friend of Marshall’s, who also served as co-legal counsel during an inquiry into his compensation for his wrongful conviction, calls him “a source of hope and inspiration for all Indigenous Canadians, but particularly for Mi’kmaq people,” while adding that, “for many other Canadians, his strength, achievements and sacrifices are held close to their hearts.”
It was not always the case. Junior, as he was known, was First Nation royalty, the son of Donald Marshall Sr., the grand chief of the Mi’kmaq.
But he had the misfortune of being in Sydney’s Wentworth park the night that an ex-seaman named Roy Ebsary stabbed a black teenager named Sandy Seale to death.
The investigation that followed was shoddy, the evidence dubious. Marshall was convicted anyway.
Maloney says that being the grand chief's son meant he was protected from some of the abuse and violence teens would normally suffer while in jail. Even so, the experience left unhealable scars.
His acquittal for the murder triggered a royal commission into his wrongful conviction, which concluded that Marshall was the victim of racism and incompetence on the part of the police, judges, lawyers and bureaucrats and a system that failed him “at virtually every turn.”
The inquiry’s findings, Kaiser said, “profoundly influenced the criminal justice system” by advancing “our understanding of the many factors that can contribute to a wrongful conviction,” thereby enabling the entire country “to see absolutely clearly the vicious influence that racism can have on how accused persons are treated.”
Out of jail but still fighting
That by itself would have been enough for his name to live on. Then in August 1993, Marshall and his former partner Jane McMillan went fishing for eels in Pomquet Harbour.
The Department of Fisheries and Oceans charged him with fishing without a licence and out of season, and selling fish without a licence, all of which Marshall decided to fight.
What followed was a six-year court battle that went all the way to the Supreme Court of Canada.
We have heard a lot lately about how the judges decided to uphold treaties from the mid-1700s, which they interpreted to mean that the Mi’kmaq can earn a “moderate living” from hunting and fishing. In a rare follow-up clarification, the court said the federal government had the right to regulate the fishery for the purposes of conservation or under other circumstances.
That didn’t stop the so-called Marshall decision from sparking a level of escalating violence between Indigenous and non-Indigenous fishers that looks a lot like what is happening today in southwestern Nova Scotia.
Marshall, I remember, was in a funk about the situation when we spoke, lamenting that, perhaps, all that effort and all the time in court had done nothing to improve the lot of his people.
But maybe I just caught him on a bad day.
This week Kaiser gave me something Marshall had written at age 22 while in Springhill Institution, when his spirits must have been low.
It was about happiness, how everyone seeks it, but few find it.
Part of the problem, Marshall wrote, is that people search for it in the wrong places, and that they are “unaware that happiness is just a state of mind, within the reach of everyone who takes the time to be kind for in making others happy we will be happy too.”
Happiness, I think, is a hard thing to quantify.
It would be nice, though, to think that a man who sacrificed so much, who fought against injustice and spent his life battling for his people understood the good he did, and the symbol he remains.
