R v Marshall, 2002 NSSC 233

This application for judicial review was heard before the Nova Scotia Supreme Court, and it followed the decisions in  R v Marshall, 2001 NSPC 2, R v Marshall, 2001 CanLII 4996 (NS SC), R v Marshall, 2001 NSSC 157, and R v Marshall (SF), 2002 NSSC 57.

The applicants had been convicted at trial of cutting and removing timber from Crown lands without authorization. All were Mi'kmaq, and in their defence they had asserted Aboriginal and treaty rights, including Aboriginal title, that allowed them to do what they had done.

After they were convicted, the accuseds appealed. The Acting Director of Nova Scotia's Public Prosecution Service appointed a lawyer employed by the provincial Department of Justice to act as co-counsel on the appeal, and the appellants applied for judicial review of that decision. In essence, they argued that the appointment was illegal, because it undercut the Public Prosecution Service's independence from the provincial Attorney General.

By the time the Court heard the application for judicial review, the summary conviction appeal had already been heard. During that appeal, the appellants had not asked the hearing court to consider the alleged illegality of the appointment. Additionally, the appellants themselves had decided to have the judicial review hearing rescheduled to a date after the summary conviction appeal.

The Court held that because the appellants had decided to reschedule the judicial review hearing and had proceeded with the summary conviction appeal without raising objection to the lawyer's appointment there, they had waived their right to make their challenge now. 

For that reason, the Court dismissed the application for judicial review. Although it did not need to consider the other arguments the parties had raised, the Court went on to address them in case it had erred in holding that the applicants had waived their right to have the lawyer's appointment reviewed.

The issues at stake in the primary conviction and appeal came before the courts again in: R v Marshall, 2003 NSCA 105, and R v Marshall; R v Bernard, [2005] 2 SCR 220, 2005 SCC 43.

View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2002/2002nssc233/2002nssc233.html

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