I see the two Donald Marshall sets of reasons as being one decision explained twice. There was only one decision, and the decision was that Donald Marshall was not to be convicted. However, in the first reasons for the decision, there was a strong dissent from Justice Beverley McLachlin, who was not known as a right-wing zealot but as a middle-of-the-road judge. What she dissented was quite strong, so to create a unanimous decision they came back three months later and watered down what they said the first time.
Then, along comes the second decision, six or seven years later, and I want to mention there that Justice Beverley McLachlin, who was writing for the majority in the Stephen Marshall case, held that there was no right to commercial logging under the same treaties as Donald Marshall, because commercial logging was not the basis of their traditional culture.
Well, commercial lobster fishing was also not the basis of traditional culture and identity in 1760, because it didn't exist at the time. They didn't have the vessels to do it at the time. Therefore, I think this does narrow the scope of the Marshall decision.
That said, I agree with Mr. Zscheile in much of what he said about what the test is for justification and the honour of the Crown, that the justification must be, as he described it, the question is not what the test is but how it works today, and if—