Power without Law: The Supreme Court of Canada, the Marshall Decisions and the Failure of Judicial Activism

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McGill-Queen's Press - MQUP, Oct 1, 2009 - Law
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In Power without Law Alex Cameron enlivens the debate over judicial activism with an unprecedented examination of the details of the Marshall case, analyzing the evidence and procedure in the trial court and tracing the legal arguments through the Court of Appeal to the Supreme Court of Canada. He argues that there were critical defects in the process - the successful argument at the Supreme Court of Canada was never tested in the lower courts, the Crown's expert was precluded from testifying about a vital document, the Court's analysis does not accord with the historical evidence, and the treaty rights are inconsistent with the colonial law of Nova Scotia.
 

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Contents

Introduction
3
1 The Canadian Constitution
14
2 Judicial Activism and Its Critics
23
3 The Legal Background to Marshall No 1
44
4 Marshall No 1 in the Trial Court
48
5 The Court of Appeal
71
Marshall No 1
75
7 Fire on the Water and Marshall No 2
82
10 Trade Treaties and the Constitution
112
The Rights of British Subjects and a Promenade Down Barrington Street
118
Legal Uncertainty and Government Response
127
13 Stephen MarshallBernard
132
14 The Failure of Judicial Activism
143
R v Marshall No 1
152
Notes
215
Index
241

8 Rewriting Nova Scotia History
89
The Hovering Treaty Right
105

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About the author (2009)

Alex M. Cameron studied law at Oxford and Dalhousie Universities and practices constitutional litigation in Nova Scotia.

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