This week, the spotlight was on Justice David Marshall after he issued an unusual decision in the dispute, ordering the federal and provincial governments to stop negotiating with Six Nations representatives over their land claim until protestors vacate the land in question.
Ontario vowed yesterday to appeal the ruling.
"I've never heard of a judge ruling for people to stop negotiating," said lawyer Louis Sokolov, who had a recent case before Marshall. "I find this very bizarre."
In the past five years, nine of Marshall's cases have come before the Ontario Court of Appeal. His decisions have been upheld six times, but in three other cases the court found he committed legal errors that justified reversing the verdicts.
Whatever his record, Marshall's path to the bench has been anything but typical.
The 66-year-old judge holds two degrees — one in medicine and one in law — both earned in the mid-1960s and early 1970s. He ran both a legal practice and a medical practice in Cayuga between 1964 and 1982. In 1983, he left when he was appointed to the Supreme Court in the Northwest Territories and the Yukon.In his spare time, Marshall was a pilot, a law professor, a graduate of the Canadian Forces Staff College and the head of numerous volunteer organizations, including the Haldimand Association of the Mentally Handicapped.
In 2004, Ontario's top court quashed five sexual-assault convictions and a long-term offender designation ordered by Marshall. A unanimous court said he had made serious errors, including allowing the jury to hear prejudicial evidence.Another controversial case, in April 2005, involved an aboriginal man who sued police after being wrongly convicted for a series of armed robberies in Hamilton. When Jason George Hill sued police for malicious prosecution and negligent investigation, Marshall dismissed both actions.According to Sokolov, a large point of contention was that Marshall "did not have a problem with" eyewitnesses being shown 12 photos — of 11 white men and one native — from which to choose a suspect.
"We argued against this for obvious reasons," said Sokolov, Hill's lawyer. "That the aboriginal person would stand out."
Marshall's decision was upheld in a 3-2 ruling, but the judges in the minority criticized him for failing to provide adequate reasons for his decision.\Earlier this year in a Cayuga court, native protestors asked Marshall to remove himself from the Caledonia case because he owns properties in the Haldimand Tract, which is part of the land-claims dispute.
But Marshall said he wasn't in a conflict of interest, noting that many other judges own land covered by the massive claim.
Many of his involvements include native ties. In the 1990s, Marshall was named honorary chief of Iroquois Six Nations. In 2003, he wrote his seventh book, The History of Haldimand County.
His father, a medical missionary, had planned in the 1930s to work at missions in China and India, Marshall recalled in an interview with the Hamilton Spectator early this year.
"But it was the depths of the Depression and they couldn't afford to send him," he said.
Now Marshall, who plans to work as a judge until he's 75, hopes to fulfill his father's legacy by helping the poor in South America.
"It's something I've always wanted to do," he said. "I enjoy being able to help people."