A Reply to Professor Pothier's Review of Power Without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism
Marshall, Dianne Pothier, Supreme Court of Canada, treaty, aboriginal, hunt, fish
The Spring 2010 edition of the Dalhousie Law Journal contains an article by Professor Dianne Pothier, discussing my book, Power Without Law: The Supreme Court of Canada, The Marshall Decisions and the Failure of JudicialActivism. In the review, Professor Pothier strongly disagrees with the book's critique of the Supreme Court of Canada's majority decision in R. v. Marshall. In particular, she disagrees with the argument that the alleged treaty right of aboriginals to hunt, fish, gather and trade for necessaries, described in Justice Binnie's majority decision, is constitutionally flawed. Professor Pothier also suggests that the argument is the central thesis of the book. This is not so. The book enumerates numerous factual and interpretative mistakes found in the decisions of both the trial Court and the Supreme Court of Canada. All of them are problematic. For example, the book describes findings of fact made by the Supreme Court of Canada in the face of contrary evidence and the findings of the trial judge. It also describes the inability of the Crown's expert to discuss a document that the Supreme Court of Canada considered vital. It comments on the fact that the argument adopted by the majority of the Supreme Court of Canada was first advanced in that Court, and was never tested in the lower courts. The constitutional flaw in the majority analysis of the treaty right is simply one among many other serious deficiencies in the two judgments. But it is the one Professor Pothier chooses to dispute.
Alex M. Cameron, "A Reply to Professor Pothier's Review of Power Without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism" (2010) 33:2 Dal LJ 217.