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30063

Her Majesty the Queen v. Stephen Frederick Marshall, et al.

(Nova Scotia) (Civil) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2005-07-29 Appeal closed
2005-07-21 Judgment on appeal and notice of deposit of judgment sent to all parties
2005-07-20 Judgment on the appeal rendered, CJ Ma Ba LeB F Abe Cha, The appeal from the judgment of the Nova Scotia Court of Appeal, Number CAC 178066, 2003 NSCA 105, dated October 10, 2003, heard on January 17-18, 2005, is allowed and the convictions are restored. The cross-appeal is dismissed. No order as to costs. The constitutional questions are answered as follows:
1. Is the prohibition on cutting or removing timber from Crown lands without authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114, inconsistent with the treaty rights of the respondents/appellants on cross-appeal contained in the Mi'kmaq Treaties of 1760-61, and therefore of no force or effect or application to them, by virtue of ss. 35(1) and 52 of the Constitution Act, 1982?
No.
2. Is the prohibition on cutting or removing timber from Crown lands without authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114, inconsistent with Mi'kmaq aboriginal title to the provincial Crown land from which the timber was cut or removed, by virtue of (i) exclusive occupation by the Mi'kmaq at the time the British acquired sovereignty over the area, or (ii) the Royal Proclamation, 1763, and therefore of no force or effect or application to the respondents/appellants on cross-appeal by virtue of ss. 35(1) and 52 of the Constitution Act, 1982?
No.
Allowed, no order as to costs
2005-07-13 Correspondence received from, e-mail from Jack R. London, Q.C. re: counsel for AFN - Martin Minuk was counsel on file in the beginning but it is Jack R. London, Q.C. Assembly of First Nations
2005-07-08 Correspondence received from, Mitchell R. Taylor, re: Lock-up Attorney General of Canada
2005-07-07 Correspondence received from, Bruce H. Wildsmith, re: Lock-up Stephen Frederick Marshall
2005-07-06 Correspondence received from, Alexander MacBain Cameron, re: Lock-up Her Majesty the Queen
2005-07-05 Correspondence (sent by the Court) to, all parties, re: proposed Lock-up
2005-02-07 Transcript received, (174 pages) (joint with 30005)
2005-01-17 Judgment reserved OR rendered with reasons to follow
2005-01-17 Supplemental document, Condensed Book submitted in Court (14 copies) Joint with 30005 Attorney General of British Columbia
2005-01-17 Respondent's condensed book, Submitted in Court (14 copies) Joint with 30005 Stephen Frederick Marshall
2005-01-17 Appellant's condensed book, Submitted in Court (14 copies) Her Majesty the Queen
2005-01-17 Acknowledgement and consent for video taping of proceedings, From all parties (Joint with 30005)
2005-01-17 Hearing of the appeal, 2005-01-17, CJ Ma Ba LeB F Abe Cha
Judgment reserved
2005-01-14 Order on motion to extend time
2005-01-14 Decision on motion to extend time, to serve and file the book of authorities of the intervener, A.G.N.B., to Jan. 10/05, DeRg
Granted
2005-01-13 Submission of motion to extend time, DeRg
2005-01-13 Book of authorities, Supplemental (joint with 30005), Completed on: 2005-01-13 Congress of Aboriginal Peoples
2005-01-13 Correspondence received from, A. Lokan dated Jan. 12, 2005 (fax copy) re: will share his allotted time with P. Magnet (joint with 30005)(confirmed with the Court) Congress of Aboriginal Peoples
2005-01-12 Response to motion to extend time, Completed on: 2005-01-12 Her Majesty the Queen
2005-01-12 Response to motion to extend time, Completed on: 2005-01-12 Stephen Frederick Marshall
2005-01-12 Motion to extend time, to file his book of authorities to Jan. 10/05, Completed on: 2005-01-12 Attorney General of New Brunswick
2005-01-11 Book of authorities, (joint with 30005), Completed on: 2005-01-11 Attorney General of Canada
2005-01-11 Order on motion for additional time to present oral argument, (BY MAJOR J.)
2005-01-11 Decision on motion for additional time to present oral argument, Ma, UPON APPLICATION by the appellant for an order extending the time for oral argument on this appeal and cross-appeal;
AND HAVING READ the material filed;
IT IS HEREBY ORDERED THAT:
The motion is dismissed without prejudice to the parties to renew the application before the Court hearing the appeal subject to the condition that the time used for the application will count against the one hour allotted for the appeal.
Dismissed
2005-01-11 Submission of motion for additional time to present oral argument, Ma
2005-01-10 Book of authorities, (Motion requested), Incomplete Attorney General of New Brunswick
2005-01-07 Response to the motion for additional time to present oral argument, (Letter Form), from Bruce H. Wildsmith, Q.C. dated Jan. 7/05 (joint with 30005), Completed on: 2005-01-07 Stephen Frederick Marshall
2005-01-07 Book of authorities, Joint with 30005, Completed on: 2005-01-07 Attorney General of British Columbia
2005-01-07 Intervener's factum - AG on constitutional question, Completed on: 2005-01-07 Attorney General of British Columbia
2005-01-07 Intervener's factum - AG on constitutional question, (Joint with 30005), Completed on: 2005-01-07 Attorney General of Canada
2005-01-07 Notice of appearance, Alexander MacBain Cameron and William Daniel Delaney will be present at the hearing. Her Majesty the Queen
2005-01-07 Motion for additional time to present oral argument, for 45 minutes extra time, Completed on: 2005-01-07 Her Majesty the Queen
2005-01-06 Order on miscellaneous motion, (BY MAJOR J.)
2005-01-06 Decision on miscellaneous motion, Ma, The motion of the interveners, John Joe Sark and Keptin Frank Nevin of the Mi'Kmaq Grand Council, the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council, for an order permitting the filing of an amended single 15-page factum in both above mentioned appeals is granted.
The said interveners are granted permission to present one oral argument not exceeding ten (10) minutes at the hearing of these appeals.
Granted
2005-01-06 Submission of miscellaneous motion, Ma
2005-01-06 Intervener's factum - AG on constitutional question, Completed on: 2005-01-06 Attorney General of New Brunswick
2005-01-04 Notice of appearance, Bruce H. Wildsmith, Q.C. and Eric A. Zscheile will be present at the hearing. Stephen Frederick Marshall
2005-01-04 Response to miscellaneous motion, (Letter Form), from Nelligan O'Brien Payne dated Jan. 4/05 (joint with 30005), Completed on: 2005-01-04 Stephen Frederick Marshall
2004-12-30 Notice of appearance, Thomas Hart and Harvey Morrison will be present at hearing. Forest Products Association of Nova Scotia ("FPANS")
2004-12-23 Book of authorities, (Joint with 30005), Completed on: 2004-12-23 Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations)
2004-12-23 Response to miscellaneous motion, (Letter Form), from Alexander M. cameron dated Dec. 23/04, Completed on: 2004-12-23 Her Majesty the Queen
2004-12-23 Notice of withdrawal, of intervention Attorney General for Saskatchewan
2004-12-22 Notice of appearance, René Morin will be present at hearing. Attorney General of Quebec
2004-12-21 Notice of miscellaneous motion, to file a single 15 page factum (and to extend time)(joint with 30005), Completed on: 2004-12-21 Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council
2004-12-20 Correspondence (sent by the Court) to, All parties (recusal of Justice Binnie)
2004-12-17 Book of authorities, Completed on: 2004-12-17 Attorney General of Quebec
2004-12-17 Intervener's factum - AG on constitutional question, Completed on: 2004-12-17 Attorney General of Quebec
2004-12-16 Notice of appearance, William B. Richards, Sylvain Lussier, Pierre Castonguay and Iain R.W. Hollett will be present at hearing. Attorney General of New Brunswick
2004-12-15 Book of authorities, Joint authorities (Joint with 30005), Completed on: 2004-12-15 Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council
2004-12-15 Intervener's factum, (Joint with 30005), Completed on: 2004-12-15 Congress of Aboriginal Peoples
2004-12-15 Intervener's factum, (Joint with 30005), Completed on: 2004-12-15 Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations)
2004-12-15 Intervener's factum, (Joint with 30005) motion to amend requested - amended factum filed Dec. 17/04, Completed on: 2004-12-21 Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council
2004-12-15 Book of authorities, Completed on: 2004-12-15 Forest Products Association of Nova Scotia ("FPANS")
2004-12-15 Intervener's factum, Completed on: 2004-12-15 Forest Products Association of Nova Scotia ("FPANS")
2004-12-15 Book of authorities, Completed on: 2004-12-15 Attorney General of Newfoundland and Labrador
2004-12-15 Intervener's factum, Completed on: 2004-12-15 Attorney General of Newfoundland and Labrador
2004-12-15 Affidavit of service - e-filing, Intervenors' Factum Assembly of First Nations
2004-12-15 Intervener's factum, Joint with 30005, Completed on: 2004-12-15 Assembly of First Nations
2004-12-15 Affidavit of service - e-filing, Book of Authorities Assembly of First Nations
2004-12-15 E-filing e-mail confirmation
2004-12-15 Book of authorities, Joint with 30005, Completed on: 2004-12-15 Assembly of First Nations
2004-12-14 Intervener's factum, Completed on: 2004-12-14 Attorney General of Alberta
2004-12-14 Book of authorities, (Joint with 30005), Completed on: 2004-12-14 Attorney General of Alberta
2004-12-14 Book of authorities, (Joint with 30005), Completed on: 2004-12-14 Attorney General of Ontario
2004-12-14 Intervener's factum, (Joint with 30005), Completed on: 2004-12-14 Attorney General of Ontario
2004-12-14 Notice of appearance, Donald H. Burrage, Q.C. and Justin S.C. Mellor will be present at the hearing. Attorney General of Newfoundland and Labrador
2004-12-14 Notice of appearance, Mitchell Taylor and Charlotte Bell, Q.C. will be present at the hearing. Attorney General of Canada
2004-11-30 Appellant's book of authorities - cross appeal, Completed on: 2004-11-30 Her Majesty the Queen
2004-11-30 Appellant's factum - cross appeal, Completed on: 2004-11-30 Her Majesty the Queen
2004-11-25 Notice of hearing sent to parties
2004-11-25 Appeal hearing scheduled, 2005-01-17, (Previously Jan. 19/05)
Judgment reserved
2004-11-18 Response to the motion for leave to intervene, re: motion by Roger William - 6 copies (joint with extension), Completed on: 2004-11-18 Attorney General of Canada
2004-11-18 Order on motion for leave to intervene, (BY MAJOR J.)
2004-11-18 Decision on the motion for leave to intervene, Ma, 1) The motion of the applicant the Attorney General of Canada for leave to intervene beyond its current status as intervener on the constitutional questions is dismissed;
(2) The motion of the applicant the Attorney General of British Columbia for leave to intervene beyond its current status as intervener on the constitutional questions is dismissed;
(3) The motion of the applicants the Respondents in British Columbia Supreme Court Proceedings Nos. 23914 and 23911 (British Columbia v. Chief Ronnie Jules, et al. and British Columbia v. Chief Dan Wilson, et al.) for leave to intervene is dismissed.
(4) The motion of the applicant Chief Roger William for leave to intervene is dismissed.
(5) The motion of the applicants the Business Council of British Columbia, Coast Forest & Lumber Association and Council of Forest Industries for leave to intervene is dismissed.
(6) The motion of the applicant the Congress of Aboriginal Peoples for leave to intervene is granted. Leave is granted to serve and file a single factum not to exceed 15 pages in length in both appeals number 30005 and 30063 on or before December 15, 2004.
(7) The motion of the applicants Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council for leave to intervene is granted. Leave is granted to serve and file a single factum not to exceed 15 pages in length in both appeals number 30005 and 30063 on or before December 15, 2004.
(8) The motion of the applicant the Assembly of First Nations for leave to intervene is granted. Leave is granted to serve and file a single factum not to exceed 15 pages in length in both appeals number 30005 and 30063 on or before December 15, 2004.
(9) The motion of the applicants Songhees Indian Band, Malahot First Nation, T'Sou-Ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the "Te'mexw Nations") for an extension of time to serve and file an application for leave to intervene and the application for leave to intervene are granted. Leave is granted to serve and file a single factum not to exceed 15 pages in length in both appeals number 30005 and 30063 on or before December 15, 2004.
(10) The motion of the applicant Forest Products Association of Nova Scotia for leave to intervene is granted. Leave is granted to serve and file a factum not to exceed 15 pages in length on or before December 15, 2004.
The requests of interveners to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners.
The interveners shall not be entitled to raise new issues or adduce further evidence or to otherwise to supplement the record of the parties.
Pursuant to Rule 59(1)(a) the interveners shall pay to the appellant and respondents any additional disbursements occasioned to the appellant and respondents by the in
Allowed in part
2004-11-18 Response to the motion for leave to intervene, (by Chief Roger Williams), Completed on: 2004-11-18 Attorney General of British Columbia
2004-11-16 Appellant's book of authorities - cross appeal, (joint with respondents' authorities), Completed on: 2004-11-16 Stephen Frederick Marshall
2004-11-16 Respondent's book of authorities, (joint with cross-appeal), Completed on: 2004-11-16 Stephen Frederick Marshall
2004-11-16 Appellant's factum - cross appeal, (joint with respondents' factum), Completed on: 2004-11-16 Stephen Frederick Marshall
2004-11-16 Respondent's factum, (joint with cross-appeal), Completed on: 2004-11-16 Stephen Frederick Marshall
2004-11-16 Appeal perfected for hearing
2004-11-08 Submission of motion for leave to intervene, Ma
2004-11-03 Response to the motion for leave to intervene, (Letter Form), from Alexander M. Cameron dated 11/03/04 (by Songhees et al and the amended motion by Keptin John Joe Sark et al), Completed on: 2004-11-03 Her Majesty the Queen
2004-11-02 Reply to the motion for leave to intervene, Completed on: 2004-11-02 Congress of Aboriginal Peoples
2004-11-02 Response to the motion for leave to intervene, (Letter Form), from Bruce H. Wildsmith, Q.C. dated 11/02/04 (by Songhees et al and the amended motion by Keptin John Joe sark et al), Completed on: 2004-11-02 Stephen Frederick Marshall
2004-11-02 Reply to the motion for leave to intervene, (Letter Form), from D. Bruce Clarke dated 11/02/04, Completed on: 2004-11-02 Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council
2004-10-29 Response to the motion for leave to intervene, (Letter Form), from Bruce H. Wildsmith, Q.C. dated 10/29/04 (by all interveners but Songhees et al), Completed on: 2004-10-29 Stephen Frederick Marshall
2004-10-29 Reply to the motion for leave to intervene, Completed on: 2004-10-29 Attorney General of Canada
2004-10-29 Motion for leave to intervene, (joint with an extension of time) (joint with 30005), Completed on: 2004-10-29 Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations)
2004-10-28 Respondent's record, (Vol. I to IX), Completed on: 2004-11-16 Stephen Frederick Marshall
2004-10-28 Response to the motion for leave to intervene, (Letter Form), from Alexander M. Cameron dated 10/28/04 (by all other interveners), Completed on: 2004-10-28 Her Majesty the Queen
2004-10-25 Response to the motion for leave to intervene, (Letter Form), from Alexander M. Cameron dated 10/25/04 (by A.G. of Canada), Completed on: 2004-10-25 Her Majesty the Queen
2004-10-20 Motion for leave to intervene, Completed on: 2004-10-20 Chief Ronnie Jules, in his personal capacity and as representative of the Adams Lake Band, Chief Michael Christian, in his personal capacity and as representative of the Spallumcheen Indian Band,
2004-10-20 Motion for leave to intervene, (joint with an extension of time re: affidavit filed 10/21/04), Completed on: 2004-10-20 Chief Roger Williams
2004-10-19 E-filing e-mail confirmation, (intervention by Business Council of B.C., et al)
2004-10-19 Motion for leave to intervene, (e-filed), Completed on: 2004-10-21 Business Council of British Columbia, Coast Forest & Lumber Association and Council of Forest Industries
2004-10-19 Motion for leave to intervene, (e-filed), Incomplete Assembly of First Nations
2004-10-19 Motion for leave to intervene, (bookform), Completed on: 2004-10-20 Congress of Aboriginal Peoples
2004-10-18 Motion for leave to intervene, (AMENDED motion filed 10/29/04), Completed on: 2004-10-18 Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council
2004-10-18 Motion for leave to intervene, (under R. 55) - 6 copies, Completed on: 2004-10-22 Attorney General of British Columbia
2004-10-18 Motion for leave to intervene, (book form), Completed on: 2004-10-18 Forest Products Association of Nova Scotia ("FPANS")
2004-10-15 Motion for leave to intervene, (under R. 55), Completed on: 2004-10-15 Attorney General of Canada
2004-09-21 Appellant's book of authorities, (Vol. I to IV), Completed on: 2004-09-21 Her Majesty the Queen
2004-09-21 Appellant's factum, Appendix C amended on Sept. 28/04 with Affidavit of Service., Completed on: 2004-09-21 Her Majesty the Queen
2004-09-16 Appellant's record, (Vol. I to XXIX), Completed on: 2004-09-16 Her Majesty the Queen
2004-08-25 Order on motion to file a lengthy factum, (BY THE REGISTRAR)
2004-08-25 Decision on motion to file a lengthy factum, Reg, UPON APPLICATION by the appellant for an order permitting the filing of a lengthy factum, namely 75 pages;
AND HAVING READ the material filed;
IT IS HEREBY ORDERED THAT:
1) The motion is granted in part. The appellant shall be permitted to serve and file a factum not exceeding 60 pages in length.
2) The respondent shall be permitted to serve and file a factum not exceeding 60 pages in length.
Allowed in part, no order as to costs
2004-08-25 Submission of motion to file a lengthy factum, Reg
2004-08-24 Reply to the motion for leave to intervene, (Letter Form), from Henry S. Brown, Q.C. dated 08/19/04, Completed on: 2004-08-24 Her Majesty the Queen
2004-08-24 Notice of intervention respecting a constitutional question Attorney General of Canada
2004-08-23 Notice of intervention respecting a constitutional question Attorney General of British Columbia
2004-08-23 Notice of intervention respecting a constitutional question Attorney General of Quebec
2004-08-20 Affidavit of service - e-filing, of notice of intervention Attorney General of New Brunswick
2004-08-20 E-filing e-mail confirmation
2004-08-19 Notice of intervention respecting a constitutional question, (service missing) Attorney General of New Brunswick
2004-08-18 Response to the motion to file a lengthy factum, (Letter Form), fr. Bruce Wildsmith dated Aug. 18/04), Completed on: 2004-08-18 Stephen Frederick Marshall
2004-08-17 Motion to file a lengthy factum, (namely 75 pages)(book form), Completed on: 2004-08-17 Her Majesty the Queen
2004-07-28 Notice of intervention respecting a constitutional question Attorney General of Newfoundland and Labrador
2004-07-28 E-filing e-mail confirmation, re: notice of intervention by A.G. Sask.
2004-07-28 Notice of intervention respecting a constitutional question, (service requested) Attorney General for Saskatchewan
2004-07-26 Notice of intervention respecting a constitutional question Attorney General of Alberta
2004-07-26 Notice of intervention respecting a constitutional question Attorney General of Ontario
2004-07-05 Notice of constitutional question(s) Her Majesty the Queen
2004-06-29 Order on motion to state a constitutional question, (BY CHIEF JUSTICE)
2004-06-29 Decision on the motion to state a constitutional question, CJ, 1. Is the prohibition on cutting or removing timber from Crown lands without authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114, inconsistent with the treaty rights of the respondents/appellants on cross-appeal contained in the Mi'kmaq Treaties of 1760-61, and therefore of no force or effect or application to them, by virtue of ss. 35(1) and 52 of the Constitution Act, 1982?
2. Is the prohibition on cutting or removing timber from Crown lands without authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114, inconsistent with Mi'kmaq aboriginal title to the provincial Crown land from which the timber was cut or removed, by virtue of (i) exclusive occupation by the Mi'kmaq at the time the British acquired sovereignty over the area, or (ii) the Royal Proclamation, 1763, and therefore of no force or effect or application to the respondents/appellants on cross-appeal by virtue of ss. 35(1) and 52 of the Constitution Act, 1982?
Granted, no order as to costs
2004-06-14 Submission of motion to state a constitutional question, CJ
2004-06-09 Reply to the motion to state a constitutional question, Completed on: 2004-06-09 Her Majesty the Queen
2004-06-02 Response to the motion to state a constitutional question, (Letter Form), from Bruce H. Wildsmith, Q.C. dated June 2/04 (joint with 30005), Completed on: 2004-06-02 Stephen Frederick Marshall
2004-05-31 Motion to state a constitutional question, Completed on: 2004-05-31 Her Majesty the Queen
2004-05-31 Notice of appeal, Completed on: 2004-05-31 Her Majesty the Queen
2004-05-26 Notice of cross appeal, Completed on: 2004-05-26 Stephen Frederick Marshall
2004-05-17 Correspondence (sent by the Court) to, D. Brown from L. Meagher re: acknowledge receipt of his letter dated May 4, 2004 (joint with 30005)
2004-05-07 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted)
2004-05-04 Correspondence received from, D. Brown dated May 4, 2004 (fax copy) re: clarification of the meaning "on costs in any event of the cause" (joint with 30005) Stephen Frederick Marshall
2004-04-30 Judgment on leave sent to the parties
2004-04-29 Judgment of the Court on the application for leave to appeal, The application for leave to appeal and the application to cross-appeal from the judgment of the Nova Scotia Court of Appeal, Number CAC 178066, dated October 10, 2003, are granted with costs to the respondents/applicants on cross-appeal in any event of the cause.
Granted, with costs
2004-04-29 Judgment of the Court on the application for leave to cross-appeal
Granted, with costs
2004-03-08 All material on the application for leave to cross-appeal submitted to the Judges, Ia Bi Arb
2004-03-08 All materials on application for leave submitted to the Judges, Ia Bi Arb
2004-03-08 Memorandum of argument in response to the cross-appeal, (Letter Form), from A.M. Cameron (by fax) re: will not file response to the cross-appeal, Completed on: 2004-03-08 Her Majesty the Queen
2003-12-17 Application for leave to cross-appeal, (proof of delivery requested), Completed on: 2004-03-08 Stephen Frederick Marshall
2003-12-17 Respondent's response on the application for leave to appeal, (joint with cross-appeal)(proof of delivery requested), Completed on: 2004-03-08 Stephen Frederick Marshall
2003-12-09 Letter acknowledging receipt of a complete application for leave to appeal
2003-11-27 Application for leave to appeal, Completed on: 2003-11-27 Her Majesty the Queen

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Her Majesty the Queen Appellant Active

v.

Main parties - Respondents
Name Role Status
Marshall, Stephen Frederick Respondent Active
Keith Lawrence Julien, Christopher James Paul, Jason Wayne Marr, Simon Joseph Wilmot, Donald Thomas Peterson, Stephen John Knockwood, Ivan Alexander Knockwood, Leander Philip Paul, William John Nevin Respondent Active
Roger Allan Ward, Mike Gordon Peter-Paul, John Michael Marr, Carl Joseph Sack, Matthew Emmett Peters, Stephen John Bernard, William Gould, Camillius Alex Jr., John Allan Bernard, Peter Alexander Bernard, Eric Stephen Knockwood, Gary Hirtle Respondent Active
Jerry Wayne Hirtle, Edward Joseph Peter-Paul, Angus Michael Googoo, Lawrence Eric Hammond, Thomas M. Howe, Daniel Joseph Johnson, Dominic George Johnson, James Bernard Johnson, Preston Macdonald, Kenneth M. Marshall, Stephen Maurice Peter-Paul Respondent Active
Leon R. Robinson, Phillip F. Young Respondent Active

Other parties

Other parties
Name Role Status
Attorney General of Ontario Intervener Active
Attorney General of Alberta Intervener Active
Attorney General of Newfoundland and Labrador Intervener Active
Attorney General of New Brunswick Intervener Active
Attorney General of Quebec Intervener Active
Attorney General of British Columbia Intervener Active
Attorney General of Canada Intervener Active
Forest Products Association of Nova Scotia ("FPANS") Intervener Active
Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council Intervener Active
Congress of Aboriginal Peoples Intervener Active
Assembly of First Nations Intervener Active
Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations) Intervener Active

Counsel

Party: Her Majesty the Queen

Counsel
Names
Alexander MacBain Cameron
William D. Delaney
Contact information
Attorney General of Nova Scotia
3rd Floor - 5151 Terminal Rd
P.O. Box 7, Stn Central
Halifax, Nova Scotia
B3J 2L6
Telephone: (902) 424-4024
FAX: (902) 424-1730
Email: cameroam@gov.ns.ca
Agent
Name
Stephen J. Grace
Contact information
Maclaren Corlett
Suite 1625
50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 233-1146
FAX: (613) 233-7190
Email: sgrace@macorlaw.com

Party: Marshall, Stephen Frederick

Counsel
Names
Bruce H. Wildsmith, Q.C.
Eric A. Zscheile
Paul J. Prosper
Contact information
4172 Cornwall Rd
RR 2
Barss Corner, Nova Scotia
B0R 1A0
Telephone: (902) 644-3913
FAX: (902) 644-3912
Agent
Name
Dougald E. Brown
Contact information
Nelligan O'Brien Payne LLP
1900 - 66 Slater St
Ottawa, Ontario
K1P 5H1
Telephone: (613) 231-8210
FAX: (613) 788-3661
Email: dougald.brown@nelligan.ca

Party: Keith Lawrence Julien, Christopher James Paul, Jason Wayne Marr, Simon Joseph Wilmot, Donald Thomas Peterson, Stephen John Knockwood, Ivan Alexander Knockwood, Leander Philip Paul, William John Nevin

Counsel
Names
Bruce H. Wildsmith, Q.C.
Eric A. Zscheile
Paul J. Prosper
Contact information
4172 Cornwall Rd
RR 2
Barss Corner, Nova Scotia
B0R 1A0
Telephone: (902) 644-3913
FAX: (902) 644-3912
Agent
Name
Dougald E. Brown
Contact information
Nelligan O'Brien Payne LLP
1900 - 66 Slater St
Ottawa, Ontario
K1P 5H1
Telephone: (613) 231-8210
FAX: (613) 788-3661
Email: dougald.brown@nelligan.ca

Party: Roger Allan Ward, Mike Gordon Peter-Paul, John Michael Marr, Carl Joseph Sack, Matthew Emmett Peters, Stephen John Bernard, William Gould, Camillius Alex Jr., John Allan Bernard, Peter Alexander Bernard, Eric Stephen Knockwood, Gary Hirtle

Counsel
Names
Bruce H. Wildsmith, Q.C.
Eric A. Zscheile
Paul J. Prosper
Contact information
4172 Cornwall Rd
RR 2
Barss Corner, Nova Scotia
B0R 1A0
Telephone: (902) 644-3913
FAX: (902) 644-3912
Agent
Name
Dougald E. Brown
Contact information
Nelligan O'Brien Payne LLP
1900 - 66 Slater St
Ottawa, Ontario
K1P 5H1
Telephone: (613) 231-8210
FAX: (613) 788-3661
Email: dougald.brown@nelligan.ca

Party: Jerry Wayne Hirtle, Edward Joseph Peter-Paul, Angus Michael Googoo, Lawrence Eric Hammond, Thomas M. Howe, Daniel Joseph Johnson, Dominic George Johnson, James Bernard Johnson, Preston Macdonald, Kenneth M. Marshall, Stephen Maurice Peter-Paul

Counsel
Names
Bruce H. Wildsmith, Q.C.
Eric A. Zscheile
Paul J. Prosper
Contact information
4172 Cornwall Rd
RR 2
Barss Corner, Nova Scotia
B0R 1A0
Telephone: (902) 644-3913
FAX: (902) 644-3912
Agent
Name
Dougald E. Brown
Contact information
Nelligan O'Brien Payne LLP
1900 - 66 Slater St
Ottawa, Ontario
K1P 5H1
Telephone: (613) 231-8210
FAX: (613) 788-3661
Email: dougald.brown@nelligan.ca

Party: Leon R. Robinson, Phillip F. Young

Counsel
Names
Bruce H. Wildsmith, Q.C.
Eric A. Zscheile
Paul J. Prosper
Contact information
4172 Cornwall Rd
RR 2
Barss Corner, Nova Scotia
B0R 1A0
Telephone: (902) 644-3913
FAX: (902) 644-3912
Agent
Name
Dougald E. Brown
Contact information
Nelligan O'Brien Payne LLP
1900 - 66 Slater St
Ottawa, Ontario
K1P 5H1
Telephone: (613) 231-8210
FAX: (613) 788-3661
Email: dougald.brown@nelligan.ca

Party: Attorney General of Ontario

Counsel
Names
Robert H. Ratcliffe
Mark Crow
Contact information
Attorney General of Ontario
720 BAY ST
8TH FL
TORONTO, Ontario
M5G 2K1
Telephone: (416) 326-4128
FAX: (416) 326-4181
Agent
Name
Robert E. Houston, Q.C.
Contact information
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Party: Attorney General of Alberta

Counsel
Names
Robert J. Normey
Donald Kruk
Contact information
Attorney General of Alberta
4th Floor, Bowker Building
9833 - 109th Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-9532
FAX: (780) 425-0307
Email: robert.normey@gov.ab.ca
Agent
Name
Brian A. Crane, Q.C.
Contact information
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com

Party: Attorney General of Newfoundland and Labrador

Counsel
Names
Donald H. Burrage, Q.C.
Justin S.C. Mellor
Contact information
Attorney General of Newfoundland and Labrador
Confederation Building
P.O. Box 8700
St. John's, Newfoundland & Labrador
A1B 4J6
Telephone: (709) 729-0288
FAX: (709) 729-2129
Email: donb@gov.nf.ca
Agent
Name
Robert E. Houston, Q.C.
Contact information
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Party: Attorney General of New Brunswick

Counsel
Names
William B. Richards
Sylvain Lussier
Pierre Castonguay
Iain R.W. Hollett
Contact information
Attorney General of New Brunswick
Public Prosecutions Branch
P.O. Box 6000, Carleton Place
Fredericton, New Brunswick
E3C 5H1
Telephone: (506) 453-2784
FAX: (506) 453-5364
Email: bill.richards@gnb.ca
Agent
Name
Henry S. Brown, Q.C.
Contact information
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com

Party: Attorney General of Quebec

Counsel
Name
René Morin
Contact information
Procureur général du Québec
1200, route de l'Église
2e étage
Sainte-Foy, Quebec
G1V 4M1
Telephone: (418) 643-1477
FAX: (418) 644-7030
Email: rmorin@justice.gouv.qc.ca
Agent
Name
Sylvie Roussel
Contact information
Noël et Associés, s.e.n.c.r.l.
111, rue Champlain
Gatineau, Quebec
J8X 3R1
Telephone: (819) 771-7393
FAX: (819) 771-5397
Email: s.roussel@noelassocies.com

Party: Attorney General of British Columbia

Counsel
Name
John J. L. Hunter, Q.C.
Contact information
Sugden, McFee & Roos
700-375 Water Street
Vancouver, British Columbia
V6B 5N3
Telephone: (604) 687-7700
FAX: (604) 687-5596
Agent
Name
Robert E. Houston, Q.C.
Contact information
Burke-Robertson
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com

Party: Attorney General of Canada

Counsel
Names
Mitchell R. Taylor
Charlotte Bell, Q.C.
Contact information
Attorney General of Canada
900 - 840 Howe Street
Vancouver, British Columbia
V6Z 2S9
Telephone: (604) 666-2287
FAX: (604) 666-5925
Email: mitch.taylor@justice.gc.ca
Agent
Name
Christopher M. Rupar
Contact information
Attorney General of Canada
Bank of Canada Building - East Tower
216 - 234 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: (613) 941-2351
FAX: (613) 954-1920
Email: Christopher.Rupar@justice.gc.ca

Party: Forest Products Association of Nova Scotia ("FPANS")

Counsel
Names
Thomas E. Hart
Harvey Morrison, Q.C.
Contact information
McInnes Cooper
1601, Lower Water Street
P.O. Box 730
Halifax, Nova Scotia
B3J 2V1
Telephone: (902) 425-6500
FAX: (902) 425-6350
Agent
Name
Patricia J. Wilson
Contact information
Osler, Hoskin & Harcourt
1500 - 50 O'Connor St
Ottawa, Ontario
K1P 6L2
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: pwilson@osler.com

Party: Keptin John Joe Sark and Keptin Frank Nevin (of the Mi'kmaq Grand Council), the Native Council of Nova Scotia and the New Brunswick Aboriginal Peoples Council

Counsel
Name
D. Bruce Clarke
Contact information
Burchell Hayman Parish
1801 Hollis Street, Suite 1800
Halifax, Nova Scotia
B3J 3N4
Telephone: (902) 423-6361
FAX: (902) 420-9326
Email: bclarke@burchells.ca
Agent
Name
Brian A. Crane, Q.C.
Contact information
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com

Party: Congress of Aboriginal Peoples

Counsel
Names
Andrew K. Lokan
Joseph E. Magnet
Contact information
Paliare, Roland, Rosenberg, Rothstein, LLP
501 - 250 University Avenue
Toronto, Ontario
M5H 3E5
Telephone: (416) 646-4300
FAX: (416) 646-4301
Email: andrew.lokan@paliareroland.com
Agent
Name
Henry S. Brown, Q.C.
Contact information
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
P.O. Box 466, Stn "D"
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 788-3433
Email: henry.brown@gowlings.com

Party: Assembly of First Nations

Counsel
Names
Jack R. London, Q.C.
Bryan P. Schwartz
Candice Mettalic
Contact information
Pitblado
2500 - 360 Main Street
Winnipeg, Manitoba
R2C 4H6
Telephone: (204) 956-0560
FAX: (204) 957-0227
Agent
Name
Marie-France Major
Contact information
Lang Michener
300 - 50 O'Connor Street
Ottawa, Ontario
K1P 6L2
Telephone: (613) 232-7171
FAX: (613) 231-3191
Email: mmajor@langmichener.ca

Party: Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations)

Counsel
Names
Robert J. M. Janes
Dominique Nouvet
Contact information
Cook, Roberts
7th Floor - 1175 Douglas Street
Victoria, British Columbia
V8W 2E1
Telephone: (250) 385-1411
FAX: (250) 413-3300
Agent
Name
Brian A. Crane, Q.C.
Contact information
Gowling WLG (Canada) LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com

Summary

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Respondents were charged with cutting timber on Crown lands without authorization and in some cases with removing timber from Crown lands without authorization contrary to s.29 of the Crown Lands Act, R.S.N.S. 1989, c.114. These offences occurred in five counties on mainland Nova Scotia and three counties on Cape Breton Island.

All of the Respondents were registered status Mi'kmaq Indians at the time of the offences and all but one were members of Nova Scotia Mi'kmaq Indian Bands. The Respondents admit cutting timber on the lands or removing timber from the lands as charged but say no authorization was needed as their Mi'kmaq ancestors had aboriginal title to all of Nova Scotia and they inherited it. They say their title was bolstered by the Royal Proclamation of 1763 and further, the 1760-61 treaties give them a right to harvest forest products which, in their view includes the commercial harvesting of timber. These claims were rejected at trial and at the Summary Conviction Appeal Court (SCAC). The Court of Appeal allowed their appeal, held that the lower courts applied wrong legal principles and ordered a new trial.


Lower court rulings

March 1, 2002
Supreme Court of Nova Scotia, Trial Division

S.H. 170568

Summary conviction appeals dismissed
October 10, 2003
Nova Scotia Court of Appeal

CAC 178066

Appeals allowed; convictions set aside; new trials ordered on all counts

Filed documents

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

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The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

Downloadable PDFs

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The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.

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Date modified: 2025-05-13