Marshall Decision Nova Scotia Legal System

Matters arising from the Marshall Decision by the Supreme Court of Canada

Abstract

A review of historical events of the last 3 centuries concludes that it appears highly likely that the foundations of the Nova Scotian legal system are now invalid and require change from English Common Law to Scots Law.

Introduction

In 1999, the Supreme Court of Canada handed down a decision whereby it asserted that the Dignity of the Crown must be upheld and that, in consequence, the provisions of an 18th century treaty must take precedence over any later contradictory edicts. The implications for aboriginal rights which arise from that decision have received wide coverage in the media.

Other profound implications of this decision seem to have been overlooked.

The upholding of one 18th century Royal Treaty in respect of Nova Scotia argues that all such relevant treaties also remain valid. Of various such agreements, the two of greatest consequence at the present day, which currently are overlooked by Nova Scotian officialdom are the Treaty of Union (1707) and the Treaty of Utrecht (1713)

Provisions of the 1707 Treaty of Union

The Treaty of Union provided that, in the Union of the countries of Scotland and England, what had previously been Scottish territory would retain, in perpetuity, its own distinct and separate Legal System, a system which was fully codified by James Dalrymple (the Viscount Stair) in his 17th century tome on the subject. This is the same legal system which came recently to prominence in the matter of the Hague trial of those accused of perpetrating the Lockerbie Air Disaster.

17th Century Origins of Nova Scotia

Nova Scotia was granted as a Scottish colony in 1621 by King James (of Bible fame) acting in his capacity as the sixth King of Scots to bear that name. (He also happened to be the first King James of England.) Nova Scotia had a tenuous existence during the 1620s and the North American part of the colony was ceded to France in 1632 by James's son, the ill-fated Charles. However, before that happened, a detached part of Nova Scotia had been established as an enclave wholly within Scotland and this continues to exist up until the present day. Throughout the rest of the 17th century, this European part of Nova Scotia was not only well delineated at Edinburgh Castle, but was in continual use as the place where Baronets of Nova Scotia were created, a practice which continued right up until the formation of the united country of Great Britain in 1707, a union which was strongly promoted by John Dalrymple, the first Earl of Stair, son of James Dalrymple the legal doyen. John Dalrymple had himself, during his rise to prominence, become a Baronet of Nova Scotia and had received the title, like all the other such baronets, within the bounds of the European enclave of our Province.

Early 18th Century

In the year 1707, the North American part of Nova Scotia was still nominally controlled by France, but that country was not doing so well in European wars of the time and eventually, in 1713, was compelled to relinquish control of the mainland parts of Nova Scotia. The 1713 Treaty of Utrecht returned mainland Nova Scotia, not to England, nor to Scotland, but to the United Kingdom of Great Britain, thereby restoring to a large degree the territory of the early 17th century Nova Scotia which, though it had survived continuously in the meantime, had done so in the much reduced size of the small European N.S. enclave in Edinburgh.

In 1721, a Governor Philipps was appointed to the new British base at Annapolis Royal and it was there that he set up a Court for settling disputes following the pattern of English Common Law, because he happened to have a copy of an instruction leaflet for doing such things. The only problem was that that set of instructions was meant for use in Virginia. Its use in Nova Scotia was unquestionably contrary to the provisions of the 1707 Treaty of Union.

The Order in Council of 1763

In 1763, an edict went out from the Court of St. James to the empire in North America in general that all colonies which had not established viable alternative legal systems were to adhere to a system based upon the English Common Law. It is likely that King George had not been properly briefed on his history, particularly on the matter of his continuing obligations to the 1707 treaty of his predecessor Queen Anne. While the 1763 edict may well have been perfectly valid throughout most of the colonies, in the case of Nova Scotia, such an edict has to bow to the provisions of the earlier Treaty of Union. Quite why the edict was accepted for Nova Scotia in the 1760s, is unclear, but its status as the unshakeable foundation of Law in Nova Scotia would, after 250 years, have remained safe from all but mere historical debate and speculative whimsy, had not the Marshall Decision totally shattered its integrity. As things stand now, in 2003, it is fairly clear that only a reversion to a system based not on English Common Law but upon Scots Law will satisfy the relevant 18th century treaties and uphold the Majesty of the Crown in the manner demanded by the Supreme Court of Canada in its 1999 decision on the Marshall case.

Potential Problems

We may presume that it is now only a matter of time before this is brought up in court by some astute defence lawyer, or in some other adversorial situation and it is hard to see how any effective rebuttal could be made without the overturning of the 1999 ruling of the Supreme Court in Ottawa, unless some 18th century treaties of the Britannic Majesty respecting Nova Scotia are held to be more equal than others.

Practical Consequences

Such a revision would not likely cause great permanent disruption to the conduct of everyday affairs in Nova Scotia and would certainly not preclude many aspects of aboriginal or Acadian regulatory practices which are in use here, nor would it render void many acts of the Legislature, other than temporarily and in form rather than substance. Jury practices and available verdicts would be significantly different, as would coroner and probate rulings (both of which would, in name at least, cease to exist). Details of the rules on intestacy would change as would much terminology. The confusion during the "inter-regnum" could, however, be considerable and prolonged unless the Nova Scotian Legislature take immediate steps to mitigate the likely problems by allowing for the possibility that the currently constituted Supreme Court of N.S. could lose its supremacy, however temporarily.

Curiously, one of the strongly held principles of Scots Law is that it does itself make a point of not allowing ancient unused laws to be brought back into sudden and unexpected application. Laws which have fallen into "desuetude" lose their validity and can certainly not be resurrected suddenly after 3 centuries of disuse.

Scots' memories tend to be even longer on the Royal Mile than they are in the Highland Glens and the Court of Session in Edinburgh (the supreme authority on Scots Law) would certainly express less astonishment if approached about the knotty problem in Nova Scotia than did the Palace of Westminster about Trudeau's advances in the 1980s concerning the constitution of a country from which the Commons and Lords of that assembly thought they had abrogated responsibility in 1867, but the Court of Session would find itself with the unprecedented question as to whether the Scottish Legal System itself could ever be held to have fallen into desuetude. In the light of the Canadian Supreme Court's decision on international treaties, it would probably lean towards an opinion that 300 years was not long enough for that to have happened, even if individual laws from 300 years ago would be long gone.

The Court of Session might be aided in such a determination by taking note of one 20th century legal decision which provides an instance of the recognition by a Scots Court of its continuing authority and obligations within the ancient bounds of Nova Scotia, wherin the Lord Lyon, Sir Thomas Innes of Learney agreed to hear and to grant a petition from Richard P.F. Mingo Sweeney of Bonshaw, Prince Edward Island ( 14th May 1968 ). The Lord Lyon's decision was promulgated in PEI by publication in the Royal Gazette at Charlottetown on the 15th June 1968, a clear acceptance of the Scottish Lyon Court's continuing authority there.

The reader should perhaps be reminded that the ancient bounds of Nova Scotia included, in addition to the territory bearing that name today, the regions now known as the Provinces of New Brunswick and Prince Edward Island and to the Gaspe peninsula and the Islands of Magdalene and Anticosti.