Book Review of Alex M. Cameron, Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism

Abstract

Alex Cameron’s book, Power Without Law, is a scathing critique of the Supreme Court of Canada’s 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.’s Mi’kmaq treaty claim. Cameron’s book has attracted a lot of attention because of the author’s position as Crown counsel for the government of Nova Scotia.2 Cameron was not involved as a lawyer in the Marshall case itself. As a fisheries prosecution, Marshall was a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867,3 and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent case dealing with the same series of treaties but different accused, R. v. Stephen Marshall; R. v. Bernard,4 which involved logging and was thus a matter of provincial jurisdiction. Cameron, who had been a staff lawyer in the civil litigation section of the Nova Scotia Department of Justice, was appointed as a Crown attorney (co-counsel) in the Public Prosecution Service (PPS) for the purposes of the appeals in the Stephen Marshall case. It was that involvement that brought Cameron to the view that the Supreme Court of Canada had wrongly decided the 1999 Marshall case, (8) and ultimately to write the book.

Keywords: Supreme Court of Canada, R. v. Marshall, Mi'kmaq, treaty, aboriginal law, Nova Scotia, fisheries, federal jurisdiction