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

• Main Author: Pothier, Dianne
• Format: Text
• Language: unknown
• Published: Schulich Law Scholars 2010
• Subjects: Book Review; R v Marshall; Alex Cameron; Crown Attorney; Supreme Court of Canada; Nova Scotia; Critique; Courts; Indigenous; Indian; and Aboriginal Law; Jurisprudence; Law; Canada; Mi’kmaq
• Online Access: https://digitalcommons.schulichlaw.dal.ca/diannepothier_collection/14; https://digitalcommons.schulichlaw.dal.ca/context/diannepothier_collection/article/1016/viewcontent/Pothier_Book_Review_of_Power_Without_Law_DLJ.pdf

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. 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, 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. I am certainly in no position to claim that Supreme Court of Canada decisions should be immune from criticism. Moreover, the Marshall case has been subject to critique from multiple perspectives, for example in a special issue of this journal,5 and in an extensive comment from Donald Marshall’s counsel. In this book review I do not hope to engage all the issues the Marshall case raises, nor to address all the points that Cameron makes. Instead, the goal of this review is to propose that the thesis of Cameron’s book is fundamentally flawed.