Working the Dead Beat

by Sandra Martin

  In late summer 2007, de Souza went back into hospital for more treatment, but she was well enough to decide that oncology nursing, through the Princess Margaret Hospital Foundation, should be the focus and the beneficiary of the 2008 Brazilian Ball. Supported by her devoted husband, Ivan de Souza, she died while the ball was still in the planning stages — the first one that occurred without her dominant presence. Five years later the ball itself was gone after a final extravaganza in September 2012.

  Donald Marshall

  Torchbearer for Native Rights and the

  Wrongfully Convicted

  September 13, 1953 – August 6, 2009

  LIKE MANY TEENAGERS, Donald Marshall drank, smoked, and hung around the local park with rowdy friends. He might have outgrown these habits and matured into a stalwart citizen, a Native leader, an entrepreneur. We will never know what his potential might have been, because he lost the chance to realize his dreams when he was convicted of murder at seventeen and imprisoned for eleven years for a crime he didn’t commit.

  By the time he was finally released on parole in 1982, he was forever damaged by the miscarriage of justice and years of detention. Another eight years passed before he was exonerated by a royal commission that had been called in 1982, when Jean Chrétien was justice minister. The royal commission, which handed down its final report in 1990, recommended an overhaul of the entire provincial justice system in Nova Scotia and found that Marshall was a victim of the racism and incompetence of a criminal justice system that had failed him “at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to and even beyond his acquittal by the Court of Appeal in 1983.”

  And yet, despite the tragedies of his later life — addictions to alcohol and nicotine and a series of troubled romantic relationships — his name is synonymous with the struggle for fairness and equality in this country. A proud Mi’kmaq, Marshall was a leader in two essential legal campaigns: justice for the wrongfully convicted and recognition of the historic treaty rights of First Nations.

  Marshall broke the trail for other innocent men, including David Milgaard, Guy Paul Morin, Thomas Sophonow, and William Mullins Johnson — all of whom eventually had their wrongful convictions overturned — but he was also a hero in the battle against racism towards aboriginals in this country. He spent six years challenging the federal government’s denial of the treaty rights granted to his people by the British Crown during the Seven Years’ War, a case that was argued successfully before the Supreme Court of Canada. “He had a huge potential for leadership, which was never crushed by his imprisonment and which enabled him to contribute to the native community in Canada,” said lawyer Clayton Ruby, a member of Marshall’s legal team before the royal commission.

  “He was a really shy person, but he was brave enough to go through the limelight a couple of times to change both the provincial systems and the federal ones and to make very significant changes,” said Terry Paul, chief of the Membertou First Nation, after Marshall’s death in 2009. “It is a tragic loss not only for me, being a personal friend, but for the aboriginal people across the country. He did so much and a lot of people benefited from his difficulties.”

  DONALD MARSHALL JR. was born on September 13, 1953, on the Membertou reserve in Sydney, Nova Scotia, the eldest of thirteen children of Donald Marshall Sr., Grand Chief of the Mi’kmaq Nation, and his wife, Caroline. Called “Junior” by his family and friends, he was in line to inherit his father’s honorary title.

  A rebellious boy and a wild youth, he was expelled from school at fifteen for striking a teacher and sent to family court. Given the choice of working with his father as an apprentice plasterer or going to the Shelburne School for Boys, an infamous provincial reformatory, he quit school with barely a Grade 6 education. That gave him lots of free time to join the Shipyard Gang, a bunch of Mi’kmaq toughs who generally made nuisances of themselves around Sydney.

  Tall for his age and physically more intimidating than some of the other gang members, Junior was the designated panhandler when money was short for rum and cigarettes. Although he shunned violence, Junior was not above petty thievery and was well-known to the law, having spent four months in the county jail when he was barely seventeen for giving liquor to minors.

  Those skirmishes were negligible compared to the legal quagmire that was about to engulf him. Sandford (Sandy) Seale, a seventeen-year-old African-Canadian, was on his way home from a dance on May 28, 1971, when by chance he met Marshall in Wentworth Park, in the centre of Sydney. The two teenagers, who knew each other casually, were chatting when Roy Ebsary, fifty-nine, a former ship’s cook who had been drinking that night with an unemployed companion, Jimmy MacNeil, age twenty-five, hailed them and asked for a light. Seale and Marshall approached. In the ensuing encounter, Ebsary, who was later described as “drunken and dangerous,” with a “fetish” for knives, fatally stabbed Seale in the stomach. The young man died of his wounds the next day.

  Five days later Marshall was arrested and charged with murder. He was processed through the justice system with such haste that he was convicted, after a three-day trial, fewer than six months after his arrest. Even when the Nova Scotia Court of Appeal finally acquitted Marshall in 1983, the judgement was miserly, absolving the police of any responsibility and saying that the innocent man had contributed in large measure to his own conviction and that any miscarriage of justice was more apparent than real.

  Eventually Ebsary was convicted of manslaughter and sentenced to three years in prison, a sentence that was reduced to one year by the Court of Appeal in 1986. He died two years later, having served less than one-tenth of the time Marshall had spent behind bars for the crime Ebsary had committed.

  Marshall had to wait until January 26, 1990, to be completely exonerated. That’s when the royal commission released its final report. The inquiry, which had been chaired by Alexander Hickman, then chief justice of the trial division of the Supreme Court of Newfoundland and Labrador, concluded that, far from being a perpetrator, Marshall was the victim of racism and incompetence on the part of the police, judges, lawyers, and bureaucrats. After submitting the final report to the Nova Scotia Cabinet, Justice Hickman said: “I really hope that at long last one Donald Marshall Jr. will stand high in the eyes of Nova Scotians, where he deserves to stand.” Later that year the provincial government awarded Marshall, who by then was thirty-six years old, a mere $250,000 in cash and a small annual stipend in compensation for an ordeal that had lasted nearly two decades.

  The most significant recommendation produced by the commission called for the establishment of an independent body to review cases of alleged wrongful conviction, something the federal government has never acted on. Instead, victims of the justice system still have to petition the courts for appeals and new trials, in a laborious and costly process. However, another key finding resulted in important changes in the way evidence is disclosed to the defence. At the time Marshall was prosecuted, in 1971, the Crown had to provide the defence only with evidence that the prosecution considered relevant. Now prosecutors are constitutionally obliged to make full disclosure of all evidence that might be relevant to the guilt or innocence of the accused.

  In the mid-1990s Marshall was in trouble with the law once again. He was caught catching and selling eels with illegal nets, out of season and without a licence, in Pomquet Harbour, near Antigonish, Nova Scotia, in August 1996. When officials from the federal Department of Fisheries and Oceans told him and his companion to stop fishing, he didn’t comply. Instead, Marshall, who had learned the hard way to be wary of authority, phoned his friend Chief Paul and asked his advice. “I told him to keep fishing,” Chief Paul said later. “I felt strongly that he had a right to be there and gain a livelihood.”

  The real difficulty occurred when Marshall left the shore and sold his catch — 210 kilograms of eels — for $787.10. That exchange of money and goods led to his conviction for fishing
out of season, fishing with illegal nets, and selling eels without a licence, but it also initiated a legal battle that lasted six years, involved three courts, and provoked learned discussions in the Supreme Court of Canada about the treaty rights that the Mi’kmaq had been granted in 1760 by the British to help secure their loyalty during the Seven Years’ War with France. Eventually, for the second time in his short life, the proud Mi’kmaq with a Grade 6 education won a landmark legal victory.

  In a decision that enshrined Native treaty rights, the Supreme Court ruled that the 1760 treaty allowed Native people to take fish and game and trade them for “necessaries” at a local trading post. The court wrote that recognizing those rights was important in order to uphold the honour of the Crown in its dealings with the Mi’kmaq people.

  The decision was greeted with jubilation in Native communities. It instantly made Native fishermen big players in the East Coast commercial lobster fishery, which led to angry protests by non-Natives that coalesced around Burnt Church, New Brunswick. The unrest led to a second Marshall case at the Supreme Court in 1999, in which the court clarified that it had not created “open season in the fisheries” and that the Crown retained the right to limit the size of the catch if necessary.

  Once again the man at the centre of a broader controversy, Marshall accepted the spotlight reluctantly, saying he hadn’t gone to the Supreme Court for himself but “for my people. It was more touching than anything else.” After saying that he was too old to go fishing, he admitted that he had thought about giving up the fight, but kept going because “I knew that I had dealt with bigger problems.”

  His past problems were compounded by serious addictions to drink and cigarettes. In 2003 he had a double lung transplant in an eight-hour operation in a Toronto hospital to try to overcome the ravages of chronic obstructive pulmonary disease, a progressive and ultimately fatal lung condition whose symptoms are chronic bronchitis and emphysema. Marshall later said that the recovery was tougher than two trips to the Supreme Court.

  He was feeling well enough in June 2007 to celebrate his marriage to non-Native Colleen D’Orsay, but the honeymoon was short-lived. Less than a year later she complained to the Cape Breton Post that her husband had received only $156,000 of the $2 million the thirty-three eastern Canadian chiefs of the Atlantic Policy Congress of First Nations Chiefs Secretariat had pledged to pay him in 2001 in recognition of his long struggle on their behalf to establish their historic fishing and hunting rights. One of the exceptions was Chief Paul, who had given him at least $100,000. “All I can say is that when I make a commitment, I stand by it,” he told the Cape Breton Post, suggesting that Marshall was facing continuing health problems from his double lung transplant. “We felt it was the honourable thing to do, to be able to assist him.”

  Then, in October 2008, Marshall appeared in a Sydney court accused of assaulting and threatening his wife and her former husband, lawyer Luke Wintermans. His wife was at Marshall’s side when he pleaded not guilty in January 2009. His lawyer argued that there had been an abuse of process when a local Crown attorney telephoned a police sergeant seeking an update after some of the charges were laid.

  Before the matter could be resolved, Marshall was admitted to hospital in Sydney, suffering from kidney failure, probably as a consequence of the anti-rejection drugs he had been taking since his lung transplant six years earlier. He died on August 6, 2009, at age fifty-five. His roller-coaster ride through the Canadian criminal justice system was finally over. “We pay the money, we have the public inquiry,” his former lawyer Clayton Ruby said at the time, “but we can’t make them whole again.”

  Conclusion

  Ways of Saying Goodbye

  THERE ON THE computer screen was the familiar wide-mouthed grin of one of America’s favourite humorists. Instead of a riff on presidential foibles or a chuckle about the absurdities of everyday life, Art Buchwald, the widely syndicated columnist, beamed benignly and delivered his ultimate punchline: “I’m Art Buchwald and I just died.”

  It was January 17, 2007, and the obituary world had just changed as dramatically as the cinema had back in the 1920s, when filmmakers figured out how to incorporate sound into moving pictures. You’ve heard about living wills; welcome to living obituaries, in which the deceased speak openly about their lives and their legacies from beyond the grave.

  Most major newspapers had websites by the beginning of this century. The Internet had made it possible for people around the world to read and compare obits of celebrities, politicians, and even small-town heroes. It had given locally written obituaries a diverse international audience, which was good for writers, readers, and usually the subjects, even though they weren’t around to enjoy or assess the accounts of their lives. The New York Times, which had already launched an obituaries site with archival features and slide shows, did something much more revolutionary with the Buchwald video.

  At first it seemed like a prank. After all, Buchwald had cheated death for almost a year since refusing dialysis and entering a hospice. Before long he seemed so robust that he was kicked out of palliative care and sent home. He took such delight in writing about not dying — in his syndicated newspaper column and a book called Too Soon to Say Goodbye — that his celebrity reached new heights.

  But the video was not another joke. Buchwald really was announcing his own death, at eighty-one, from kidney disease. Before finally going “upstairs,” as he put it, he had recorded an interview for the New York Times website — the first in an ongoing but irregular video series called “The Last Word.”

  As I’ve said earlier, the goal of a modern obituary writer is to bring the subject alive for readers — warts and all. Journalists use any and all legitimate tools to achieve that end. The video camera is only the latest in a series of visual enhancements that began with newspaper sketches and photographs. But its interactive quality and its ability to create the illusion that the subject is talking directly to a viewer in real time blurs the lines between life and death, reality and fantasy, journalism and narcissism.

  Buchwald, the only son and youngest child of Jewish immigrants from the former Austro-Hungarian Empire, was born on October 20, 1925, in New York City. His childhood was traumatic: his mentally ill mother was institutionalized, he was sent to an orphanage after his father’s curtain manufacturing business failed during the Depression. Things didn’t improve after he was reunited with his father and older sisters. He dropped out of high school and ran away from home when he was seventeen.

  Although underage, Buchwald enlisted in the U.S. Marine Corps during the Second World War and served in the Pacific for two years before being demobilized as a sergeant. He went to the University of Southern California on the GI Bill, began working as a writer and editor on the campus newspaper, and in the late 1940s went to Paris, where he was eventually hired by the European edition of the New York Herald Tribune. His chatty, irreverent columns about characters and incidents became a big hit on both sides of the Atlantic.

  Despite his fame as a humorist, Buchwald, unbeknownst to most of his readers, suffered from depression. To them he was the genial everyman. So when he spoke about his approaching death in matter-of-fact terms, discussing his living will — which stipulated he was not to be resuscitated if he fell into a coma — he was reassuring rather than ghoulish. Buchwald demystified death by defying his medical prognosis until even he seemed a bit impatient to get on with the big goodbye, and then by finally going into the great unknown with a smile on his face.

  Watching him cheerfully recording the announcement of his own death before it happened changed the dynamics and the protocols of obituary writing. Instead of journalists assessing and describing the life that had just concluded, here was the subject of the obituary offering his own commentary on his life. Is that bad? Not necessarily. Everything depends on the context. The Buchwald video, which was made by nyt journalists, was posted on its obituary website after the humor
ist’s death, not before, along with an explanation of this new feature and accompanied by the newspaper’s print obituary.

  Having interviewed people in advance for their obituaries both for print and the Web, I am still troubled by one aspect of the confidentiality clause that is part of the deal. “Talk to me about your life and I promise it won’t appear during your lifetime” is the offer I always make. That pact is easy to uphold if the confidence involves admitting to a long-ago affair that many people already suspected. What happens if your subject reveals a state secret or a criminal activity? Are you going to sit on a huge scoop for five or ten years? Will your editors let you? Forget journalism — what about the law? Does a promise to a source override an obligation to bring a felon to justice while there is still time to hold him or her accountable? That’s a moral and legal dilemma that will become more and more troubling as we find new ways to help the dead communicate with the living.

  Another danger comes from the other side of the ledger: the insatiable demand for video uploads and links to enhance traditional reporting can undermine the objectivity of obituaries. There are already lots of legacy sites offering to produce online obituaries for grieving friends and families with the inconvenient truths obliterated. These are testimonials, and they have their place, but they are not obituaries.

  These testimonials dressed up as editorial content have their roots in the local-hero obituaries that have long been a feature of small-town newspapers. American journalist Jim Nicholson gave the form a big-city flavour when he began writing “ordinary Joe” obituaries for the Philadelphia Daily News, a large-circulation metropolitan daily, in 1982. The Globe and Mail followed suit with the launch of its “Lives Lived” column, as did many other papers on both sides of the Atlantic.

  Over time, though, there has been a noticeable shift from staff- or freelance-­written material to unpaid submissions from family and friends. Discerning readers can tell the difference between pieces that used to be researched and written by journalists and are now produced by grieving loved ones. Many complain of a gnawing feeling that obituaries were better written, as with everything else, in the good old days. The truth is that you usually get what you pay for — an old adage that explains the diminution of quality and objectivity that comes with running free editorial content, even if you gloss over that reality by saying you are connecting with the community.