Case Brief Wiki


After the decision in R v Marshall (No. 1) was released, the intervener West Nova Fishermen’s Coalition applied for a stay of the judgment and a rehearing to have the Court address the regulatory authority of the Government of Canada over the fisheries, and to give the Government a chance to justify their regulations (the justification issue was not raised in the original trial).


  1. Can an intervener apply to have the Court force the government to attempt to justify its regulations over aboriginal rights?


Motion denied.


The Court makes it clear that the interveners have no right to bring this motion, but decides to deal with the claim anyway. The Court clearly states that Marshall, like any other accused who is found not guilty, is entitled to an immediate acquittal and a stay of such a judgment is not permitted in any circumstances. This would violate the presumption of innocence. Further, it is only in exceptional circumstances that the court would hear a motion from an intervener requesting a new trial – exceptional circumstances that are not present in this case.

The Coalition states that a retrial is necessary to clarify the broader ramifications of the decision. The Court rejects this, saying that the decision reflects only the prosecution of a private individual, and therefore the decision is limited to the issues necessary to consider in the particular case – not for society in general. It is also bizarre to suspend a judgment of the court when it was not one of the parties that asked for this to be done.

The Coalition asks for a new trial on six grounds. The first asks for justification to be provided by the government. The Court rejects this because it is seeking a trial on an entirely new issue, which is unrelated to the original decision. Second, they seek a new trial to determine whether the treaty rights can be limited by Crown regulations. The Court rejects this as it was made very clear that treaty rights can be limited by regulation so long as the regulations are justified using the Badger/Sparrow test. They also ask whether Marshall can be properly acquitted if there was no examination of possible justification, to which the Court responds that an acquittal cannot be set aside to address new issues that were not raised by either party to the original case. The Court also states that the Crown has the authority to regulate the fishery in any way that they like, so long as it is justifiable – this includes through "closed seasons".

The Coalition also asks that the Court clarify the scheme necessary for justification, which the Court responds to by stating that this was made clear in Badger.

The Court also provides a summary of the important findings that came from the Marshall case:

  • the treaty right itself is a narrow right
  • the paramount objective of the regulations is the conservation of resources
  • the Minister's valid objectives are not limited solely to conservation issues
  • aboriginal people are entitled to be consulted when regulations limiting their rights are created as a byproduct of the special relationship with the Crown
  • the Minister can regulate the rights using any means possible, so long as they can be justified

Finally, the Court rejects the request for a stay in the specific judgment or the broader effect of the judgment because neither of the parties in the actual proceeding requested this to be done.


Interveners can only request a stay in a judgment (limited or broad effects) in exceptional circumstances – normally one of the parties to the proceeding must request this. no