R v Marshall; R v Bernard

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R v Marshall; R v Bernard
Supreme Court of Canada
Hearing: January 17, 18, 2005
Judgment: July 20, 2005
Full case name Her Majesty The Queen v Joshua Bernard, et al. and Her Majesty The Queen v Stephen Frederick Marshall, et al.
Citations 2005 SCC 43, [2005] 2 S.C.R. 220
Ruling The appeals allowed and the convictions restored. Marshall cross‑appeal is dismissed.
Court Membership
Chief Justice: Beverley McLachlin
Puisne Justices: Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron
Reasons given
Majority McLachlin C.J.
Concurrence LeBel J.

R v Marshall; R v Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon Aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties where the right to commercial fishing was granted in the R. v. Marshall decision.


This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown land without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that were cut from Crown lands.

In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.

At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.

Opinion of the court[edit]

McLachlin, writing for the majority, held that there was no right to commercial logging under the treaties. From the evidence she found that it did not support the conclusion that commercial logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.

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