Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism.

• Date: 22 December 2010
• Author: Ginn, Diana

Power Without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism by Alex Cameron Montreal: McGill-Queen's University Press, 2009

In Power Without Law, (1) author Alex Cameron strongly criticizes "incautious judicial activism" (2) which allows the law to become "too malleable to personal judicial predilection." (3) Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1), (4) in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall (No 2) (55) and R v Stephen Marshall; R v Bernard. (6) He characterizes these three decisions as reflecting a worrying trend in judging: a results-based judicial activism that blurs the line between law and policy, and between the role of judges and the role of elected legislatures. Cameron sees this approach to judging as inimical to the rule of law, and thus as an exercise of power without law.

Power Without Law is a well-researched, well-written book which presents strong but carefully argued views on issues of legal and political significance. It should be read by anyone interested in the role of judges, the rule of law, Aboriginal and treaty rights, constitutional law, or the use of historical evidence in the courts. Because of the issues it tackles, Power Without Law will cause debate and in some cases, sharp disagreement. (7) When the book was published, the Assembly of Nova Scotia Mi'kmaq Chiefs requested that Cameron, a senior constitutional lawyer with the Department of Justice in Nova Scotia, be removed from any cases involving First Nations. (8) While readers may be strongly divided on the merits or pitfalls of judicial activism, this book, with its thorough historical analysis and carefully explained reasoning, will help ensure that the judicial activism debate is an informed one. While not persuaded by every aspect of Cameron's arguments, I found the book informative, thought provoking and an excellent read.

Cameron emphasizes in Power Without Law that he is providing a legal analysis. He notes that increased Native access to commercial fisheries and other resource-based industries may be a legitimate policy choice, but argues that "policy is the realm of elected governments" (9) and not the realm of judges. Cameron also emphasizes that his book is not intended to be disrespectful of Justice Binnie, who wrote the majority decision in R v Marshall (No 1), or of the Supreme Court of Canada as a whole; nor is it intended as a criticism of Native communities or of Mr. Donald Marshall Jr. (10)

The events leading up to R v Marshall (No 1) started in the summer of 1993, when Donald Marshall Jr., a Mi'kmaq from Cape Breton, caught 463 pounds of eels in Pomquet Harbour, Antigonish County and sold them for approximately $800. In doing so, Mr. Marshall engaged in a commercial fishery and because he fished "without a licence in a closed season with illegal nets," (11) he was in violation of regulations made under the federal Fisheries Act. (12) Mr. Marshall argued that he had a treaty right to catch and sell the eels which superseded the Fisheries Act.

Although unsuccessful at trial (13) and the Nova Scotia Court of Appeal, (14) at the Supreme Court of Canada Mr. Marshall was acquitted of the Fisheries Act charges. The majority of the Court held that a treaty signed in 1760, the Treaty of Peace and Friendship (15) (hereinafter referred to as "the 1760 Treaty"), gave Aboriginal peoples in the Maritimes the right "to continue to provide for their own sustenance by taking the products of their hunting, fishing and other gathering activities, and trading for what in 1760 was termed "necessaries," (16) where "necessaries" were later described as "equivalent to a moderate livelihood." (17) While the 1760 Treaty made no explicit reference to such a trading right, the majority of the Supreme Court of Canada held that the right existed through the combined effect of oral terms that were negotiated, but not included in the written document, and a clause in the 1760 Treaty which stated that the Mi'kmaq would trade only through government-established truck houses (trading posts). (18)

Cameron is blunt in his censure of the...