Bad Judgment – Revised & Updated: The Myths of First Nations Equality and Judicial Independence in Canada

By John Reilly

John Reilly’s second book, Bad Judgment, details the author’s battle with the Canadian justice system and the difficulties he faced trying to adapt Eurocentric Canadian law for the benefit of First Nations people across the country. This revised and updated edition looks at the future of the Canadian legal and political systems as they relate to this country’s indigenous communities.


Judge John Reilly, now retired, was, at age 30, the youngest jurist ever named to the Provincial Court of Alberta. For most of his 33 years on the bench he was the circuit judge for the Stoney Indian Reserve at Morley, Alberta.


During his career he became interested in aboriginal justice. He saw the failure of the “white” legal system to do justice for aboriginal people, the harm caused to them by Canadian colonialism, and the failure of all levels of government, including tribal government, to alleviate their suffering and deal with the conflicting natures of European-style law and indigenous tradition and circumstance.


As a result of these realizations, Judge Reilly vowed to improve the delivery of justice to the aboriginal people in his community and used his perceived power as a jurist to make changes to improve the lives of the people in his jurisdiction. Along the way, he came into direct conflict with Canadian judicial administration and various questionable leaders among the echelons of both Canadian and First Nation governments.

• Language: English
• Publisher: RMB Rocky Mountain Books
• Release date: Sep 10, 2019
• ISBN: 9781771601979

John Reilly

Professor John Reilly has been a keen birder all his life, visiting over fifty countries and observing nearly half the world's bird species. In the late 1970s, he led several pioneering bird and wildlife tours to the Arctic island of Spitsbergen. Since developing an interest in avian evolution, he has concentrated on tracking down and photographing species that have important evolutionary stories to tell, birds that provide the key characters for each of the book's chapters. After graduating in biochemistry and then medicine, John worked as a consultant haematologist in Sheffield for 25 years. In addition to teaching, lecturing and clinical work, he led an active research programme into the causes and treatment of various blood cancers, authoring over 200 scientific articles in peer-reviewed journals. John's medical and scientific career, and time spent as a bird guide, enable him to present complex scientific concepts to the non-specialist ―whether in the field of leukaemia or the evolution of birds. In 2014, he retired from the NHS to concentrate on travelling and writing. This career change was encouraged by the success of his first book, Greetings from Spitsbergen: Tourists at the Eternal Ice (2009) published by Tapir Academic Press. In 2013, he established Svalbard Press (2013), with the aim of publishing the histories of different countries as revealed by their early postcards. The first volume in the series, Spitsbergen's Early Postcards: an annotated catalogue, was published in 2014. Further volumes on Papua New Guinea and Greenland are in preparation.

Book preview

MEDIA COMMENTARY ON JOHN REILLY

Bad Medicine is an insider’s look at the failure of the justice system in its dealings with Aboriginal lawbreakers. Alberta Provincial Court Judge John Reilly spares no one, including himself, in his belief that a different and non-racist approach would serve First Nations more effectively. He makes a compelling case for good medicine to replace the bad. A must read for anyone connected with Canada’s legal system.

— Catherine Ford,

Author of Against the Grain: An Irreverent View of Alberta

Bad Judgment is an angry book and Reilly pulls no punches in naming names.

—Eric Volmers, The Calgary Herald

Reilly makes no pretence towards his book being a scholarly one, and this is possibly one of its greatest strengths. He has a message to deliver, not just for academics and policy makers, but for Canada and possibly the world at large. He disavows the often mysterious and arcane jargon that academia insists must be correct, in order to make his message accessible to anyone who may venture to read it, from the most educated to the least educated.

—David Milward, School of Law, University of Manitoba,

The Windsor Yearbook of Access to Justice

For anyone who is still learning about the very real issues Indigenous Canadians face, [Bad Medicine] will be an eye opener. If you are interested in the concept of restorative justice, this is a must-read.

—Edmonton Public Library,

Indigenous Stories and Reconciliation: 11 Must-Reads

… here’s a judge willing to speak out and actively engineer alternatives and swim bravely against powerful societal currents.

—Bill Kaufmann, Calgary Sun

[John Reilly’s] crusade has touched off a nationwide debate about government policies that are designed to foster native self-determination but may condemn another generation of Indians to lives of dependency and despair.

—Steven Pearlstein, The Washington Post

Judge John Reilly wanted to expose wrongdoing on the Stoney reserve. What he didn’t realize was that powerful forces – in Ottawa, in Edmonton, and in the band itself – had a vested interest in ignoring the problem.

—Gordon Laird, Saturday Night

… government dollars flow in and many reserves get huge oil and gas revenues, but housing is pitiful, in some cases water is unclean, and social problems, unemployment and crime are all high. Why is this? Reilly had the courage to ask. He’s not alone.

—Linda Slobodian, Calgary Sun

Judge Reilly’s order was a brave and crazy political stunt. There is little chance that his order will hold up on appeal, but that’s not the point. This man, this powerful white man who makes his living moving people from the scenic ghettos we quaintly call reservations to the even worse environment of prison, tried to do the right thing.

—Nick Devlin, FFWD

At first it appeared little would come of Provincial Court Judge John Reilly’s order for an investigation into physical and political squalor on the Stoney Indian reserve, 30 miles west of Calgary…. But now it seems Judge Reilly’s intervention has unleashed a maelstrom of activity: in the courts, in Ottawa – and especially in band offices, where frustrated Indians are taking matters into their own hands.

—Alberta Report

BAD JUDGMENT

The Myths of First Nations Equality and

Judicial Independence in Canada

Revised and Updated

by John Reilly

Morley_Map.ai

Contents

Acknowledgements

Introduction

1 How This All Started

2 Aboriginal Awareness in the 1990s

3 The Hunter Matter

4 The Hunter Judgment

5 Judicial Independence

6 Judicial Remuneration

7 Cpl. Young

8 The Hunter Sentence Appeal

9 R. v. Gladue

10 A Meeting with the Chief Judge

11 After the Meeting

12 The Litigation Begins

13 The Hearing on Jurisdiction

14 Preserving the Public Right

15 Attempted Mediation

16 My October Crisis

17 The Judges Association

18 The Appeal re Jurisdiction

19 The Record

20 The Hearing on the Merits

21 My Complaint

22 At Long Last, the Ruling on the Merits

23 Judge Walter

24 The Chief Judge’s Appeal

25 The Government Responds Legislatively

26 The Judicial Railroad

27 The Judicial Inquiry

28 My Court Costs

29 After the Inquiry

30 My Complaint

31 Mediation

32 After the Mediation

33 S/Sgt. Cohn Investigates My Conduct

34 Caux

35 Reflections

Appendix A: Allies and Adversaries

Appendix B: The talk I never gave

Appendix C: From dissenting Reasons for judgment 

by BC Court of Appeal Justice Rowles

in R. v. Gladue

Appendix D: From reasons for judgment 

by Alberta Queen’s Bench Justice Mason

in Reilly v. Wachowich

Further Reading

Index of Names

For Alan Hunter, QC

(1937–2010)

❖

Acknowledgements

I don’t really consider myself an author, but I had a story to tell and it was only through the encouragement and support of many of my friends that I was able to tell part one of it in my first book, Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community. That work had its genesis at the Georgetown Research Institute when Bob Sandford facetiously told me that the institute was a literary club and in order to be a member I would have to publish.

The Georgetown Research Institute is the impressive sounding name used by a group of learned Canadians who gather weekly at the Georgetown Inn in Canmore and solve the world’s problems over a few glasses of ale. Bob initiated the discussion, but I have also appreciated the support and encouragement of the other members of the institute: Joost Aalsberg, Paul Carrick, Sally Guerin, Rick Hester, Peter Nichol, Lawrence Nyman, Dave Palmer, Keith Paynter, Brent Pickard and Peter Rollason.

Bob Sandford is the author or editor of over 25 books on environmental policy and on the history and heritage of the Canadian West. He began his work with UN-linked initiatives as chair of the United Nations International Year of Mountains in 2002. He also chaired the United Nations International Year of Fresh Water and Wonder of Water Initiative in Canada in 2003–04. He is currently the Epcor Chair of the Canadian Partnership Initiative in support of United Nations Water for Life Decade.

It was Bob who introduced me to Don Gorman, the publisher of Rocky Mountain Books, now called RMB. Don suggested the title Bad Medicine, and in doing so, also gave me the inspiration for the title of the present book.

Also at RMB, editor Joe Wilderson has been a pleasure to work with. His improvements on my somewhat amateurish manuscripts have transformed them into very professional appearing books.

I would like to thank John Martland, QC, for reading and commenting on the manuscript. His remarks had me remove some unnecessarily inflammatory material, which may allow the book to be published without litigation.

Thanks also to retired Judge Doug McDonald, who took the author photo used on the back cover. He won second place with that image at the Sooke Annual Fair. I’m embarrassed by how much I like it.

It was difficult for me to focus on writing this account. I found it almost impossible to work at home, because there were so many distractions and easy excuses to do something else. For this reason I did much of the writing away from home: with my son, Sean, and his wife, Alice, in Taichung, Taiwan; at Alan and Jacquie Kay’s condo in Kaslo, British Columbia; at Ron England’s home on South Pender Island, BC; and at Nancy Spratt and Mark and Jack Robinson’s weekend home in Canmore, Alberta. I thank you all for giving me the space I needed.

I wish to acknowledge as well the many people who encouraged me, both in the events described and in the writing about those events: Carmen Beck; John Chief Moon; Keith Chief Moon; Ron Davey; Mary Lou Davis; Mike and Lise Dove; Charlotte England; Chris Evans, qc; Harley and Lois Frank; Tina Fox; Anne Georgeson; Cheryl Goodwill; Sandra Hamilton; Warren and Mary Anna Harbeck; Paul and Sharon Hatfield; Susan Kurtz; Floyd Many Fingers; Martha Many Gray Horses; Lorraine Parker; Gail Patrick; Marjorie Powderface; Peter Poole; Donna Potter; Roland Rollinmud; Ron and Sally Starchuck; Judy Tilley; Greg Twoyoungmen; Helmer Twoyoungmen; Preston Twoyoungmen; Syd and Frances Wood and many others who pressed me to get the next book out.

Introduction

My 33 years as a judge, and especially the 20 years during which I had jurisdiction over the cases arising on the Stoney Indian Reserve at Morley, were a very painful learning experience. They made my life much more difficult but much better. More difficult because they brought me into conflict with my chief judge, the court administration, many of my fellow judges, the government of Alberta and the federal Department of Indian Affairs and Northern Development (as it was then called). Better because they gave me a focus and a purpose. The focus was real justice and the purpose was to improve the delivery of justice to the Indigenous People in my jurisdiction.

My friend Donna Kennedy-Glans advised me not to write this book. Her reason was that to relive the events of which I speak might be bad for me psychologically. I met Donna in her capacity is the founding director of Bridges, an NGO she had established while working in Yemen for Nexen Inc. She was a Conservative MLA at the time we had this discussion, and while the thought crossed my mind that she didn’t want me to write about things that would reflect negatively on the Conservative government, I was confident that her motive was my happiness and mental health. She may have been right. Writing this book was tremendously difficult, it generated a lot of negative emotion for me, and I didn’t like the result. But I had made a commitment to Don Gorman and Rocky Mountain books to have it written by the fall of 2014, so I submitted it for publication in spite of my negative feelings about it.

Bob Sandford once told me that as an author you never really finish a book; you just reach a point where you abandon it. I confess that I abandoned the first version of this book without feeling that it was really finished.

I’m doing this rewrite with much more positive emotion because I believe the circumstances of the Indigenous People of Canada are improving. The release of the interim report of the Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future, and newly elected Prime Minister Justin Trudeau’s promise to work towards a new relationship with Canada’s Indigenous People, have given me new optimism.

I am much happier with the present revision.

When I wrote the first edition, I was thinking mostly about the lawyers and judges who would read it and who had been critical of my conduct throughout the time that I describe. So I wrote largely in the form of a legal argument. A number of non-lawyer readers of the first edition have commented that they found it difficult to read because of its legal and technical nature. I do this rewrite with a view to telling the story to readers who do not have a legal background, and are just interested in the story.

There are number of reasons why I want to tell this story. One is simply that it was part of the plan. When I talked to Bob Sandford about my ambition to write a book, I told him I wanted to write about the people and the cases that changed my understanding of Indigenous People, my struggle with my court administration, and my changed view of the law of Canada. I said that all of this seemed like it would be a tome that would rival War and Peace in length, and I was so overwhelmed by the whole project that I just couldn’t get it started. Bob suggested I break it up and write three books. So Bad Medicine was book one, this is book two, and book three, which hopefully will appear in 2019, will be titled Bad Law.

The more serious reason is that I believe the story of my own struggle is important because it demonstrates the difficulties of the Indigenous People of this country in our so-called justice system.

The bad judgment I refer to is, of course, that of the chief judge in ordering me to leave this jurisdiction. There may be those who think the title more aptly fits my own conduct in the events described. I will leave that conclusion to the reader.

The subtitle, The Myths of First Nations Equality and Judicial Independence in Canada, was chosen to underscore two facts: that there is still a real problem of inequality for Indigenous People in the Canadian justice system; and that judicial independence, which should be sacred as a bastion of protection for all citizens, is not as sacrosanct as one might expect. The story I will tell here will show how this inequality inherent in our criminal justice system results in unjust bias against Indigenous People. And since judicial independence is fundamental to the system that protects the rights and freedoms of every person in Canada, this story will also show that one of the most serious threats to that protection is posed by politicians who seek to control judges.

In a civilized and democratic society the legislative arm of government passes laws to maintain public order. The administrative arm of government creates police agencies for the purpose of enforcing those laws. The judicial arm of government ensures that the enforcement of law is fair. Without the judiciary there would be no protection from oppressive legislation or from the abuse of police power.

Because the judiciary has this unique function, any attempt to control it is a threat to the rights and freedoms not only of every person who appears in court but of every person in Canada.

I was appointed to the bench in 1977 and had my office in Calgary until I moved to Canmore in 1993. From 1981 to 1986 I was the circuit judge from Calgary for Cochrane. This gave me my first experiences with the Stoney people. In those five years, I dealt with many Stoney offenders but knew nothing about them. No one would fault me for this, because it was part of being objective, which is what a judge should be.

After I was transferred to Canmore in 1993, Cochrane was added to the Canmore assignment and I again became the circuit judge with jurisdiction over cases arising on the Stoney Indian reserve at Morley.

This time I made a diligent effort to learn about Indigenous People in general and Aboriginal justice concepts in particular, and to apply the Criminal Code of Canada with cultural awareness of the circumstances of such offenders as required by a then new amendment to the Code.

In attempting to deal with Aboriginal offenders in a culturally sensitive way, I wrote lengthy judgments trying to explain the concepts I was learning to other judges, especially judges of the Court of Appeal, so that they might understand my reasoning. My judgments and the resulting media attention made me something of a hero to many Aboriginal people across Canada.

This media attention also caused me considerable anxiety. I knew it was not looked on favourably by many of my fellow judges. The chief judge told me I was an embarrassment to the court. My anxiety proved justified when on May 26, 1998, he ordered me to move from my home in Canmore to be assigned to courts in Calgary. His reason for the transfer was that I had lost my objectivity with Aboriginal offenders.

The Oxford English Dictionary defines objectivity as … the ability to consider or represent facts, information etc. without being influenced by personal feelings or opinions; impartiality; detachment. The opposite of objectivity is subjectivity, which is personal bias or opinion.

My adversaries accused me of loss of objectivity because of my efforts to deal with Aboriginal offenders in a culturally sensitive manner. Their position was that I was biased in favour of such accused and therefore unfit to hear their cases. But what I had come to see was that the system itself is biased against these offenders. What’s more, I saw a huge bias in the position of my adversaries, namely their assumption that the system treats everyone fairly and gives equal justice to all by treating everyone the same. One of the most important lessons I learned during my efforts to improve the delivery of justice to Aboriginal people is that same is not equal. When you treat people who are unlike as if they are alike, you are practising systemic discrimination. You can only achieve true equality when you take account of the differences.

The most common symbol of Justice is a blindfolded woman holding a set of scales. The scales of course are the judicial system: everything in favour of the offender goes on one side; everything against him goes on the other. When everything is properly weighed, a decision will be made for or against the accused. But what do we do if the scales are weighted against the accused before we even start? We either take weight off the heavy side or we put some onto the light side, or perhaps a little of each, to bring them into balance. In the case of Aboriginal offenders we can unweight the heavy side by acknowledging the inherent bias in the system, or we can weight the light side by acknowledging the right of these offenders to be treated differently. This is not to give the Aboriginal accused an unfair advantage but rather to give them equality by taking away disadvantage.

In my work as a judge of the Provincial Court of Alberta I was faced with a hugely disproportionate number of Aboriginal accused, and in trying to comprehend why this was, I believe I gained a bit of an understanding about the reasons for it.

The coming of the Europeans destroyed a way of life that had sustained Indigenous Peoples – without gunpowder, metallurgy or the written word – for thousands of years. When Anthony Henday met the Stoney in the mid-1700s, he commented on how peaceful their society was and how well cared for their children were.

He must have been very impressed. In the England of his time, children as young as 10 and 12 were being made to work in factories and mines. His society could be extremely cruel, while the people here in North America were living in a peaceful society that must have appeared utopian compared to his own.

Today, however, the majority of Aboriginal people in Canada are living in poverty (see, for example, the 2016 report Shameful Neglect, by David Macdonald and Daniel Wilson, listed under Further Reading), and their communities experience a disproportionate incidence of addictions, crime, suicides and children in foster care.

Whether the European newcomers were well intentioned, or just outright malicious in what they did, is not the issue. Whether they legitimately wanted to help the Indigenous People advance from what Europeans saw as primitive living conditions, or just wanted to control them so they could take their land, is not nearly as important a question as what can be done today to repair the harm that was done to their social structure.

I have heard too many people from the settler society say that the problems of Aboriginal peoples today simply come from the fact that they have been required to move through 5,000 years of human advancement in 500 years and that all that is required is more time. If you mention residential schools to people who express this attitude, you will almost always be met with the argument that those schools were all closed 50 years ago and they should just be forgotten. To me, this is like saying that when a forest fire has stopped burning, the harm is gone. The harm done to Aboriginal families and Aboriginal society by residential schools is not gone, and it is incalculable. Generations of children were taken from their families and institutionalized, often in abusive circumstances.

The Canadian government and the Christian churches justified these schools as an effort to educate the children so they could move from their primitive conditions into the advanced conditions of white society. But the stated intention was to take the Indian out of the Indian child, and in practice many of the children going into those schools became little more than free farm labour, made to work long hours on the pretext of being taught the arts of agriculture and animal husbandry.

The Indigenous people were ordered to give up their children, and those that did not were prosecuted as criminals. Many of the children taken into those schools died there. The people in the villages, left without the children, were also lost, and it is little wonder that many of them succumbed to addictions and violence. When the children who survived were released and allowed to return, many of their villages were in turmoil, and the children, who still didn’t belong in white society, didn’t belong there either.

The results of this disruption of their way of life did not disappear with the closing of the schools. Today Indigenous communities have a hugely disproportionate number of children being taken into foster care because many parents are unable to properly look after them. This is the legacy of the residential schools: generations of institutionalized Indigenous People, unable to learn the traditional customs of parenting, and children still suffering from their parents’ lack of Traditional Knowledge.

I believe one reason for the continuing suffering and dysfunction in Aboriginal communities is that it is so easy for the non-Aboriginal to ignore it. Yet awareness of it is the first step in finding a solution. This why I have written this book and why I wrote Bad Medicine.

Cori Brewster, a well-known local songwriter and singer, told me that my book inspired her to write a song she titled Bad Medicine. I was impressed by its haunting beauty and appreciative of her doing this. It supports the growing awareness of the plight of First Nations that I hope will eventually lead to change. I asked Cori if I could include the lyrics in this introduction and she kindly agreed:

Bad Medicine

My grandfather was a good friend

To the Stoney Nakoda

They were neighbours, traded horses, Watched the same sun rise upon Yamnuska

My grandfather would be troubled

By all these white wooden crosses on the hilltop

Prairie grasses around those fresh mounds, Pain and sorrow leaning in the wind

All those young men, all those young lives

Alcohol and suicides

And that hopelessness within

Bad medicine

Plastic flowers, little teddy bears

Dreamcatchers tied upon the cross

Silver necklace from her sisters

As the sun goes down on Devil’s Thumb

All those young girls, all those young lives

Alcohol and suicides

And that hopelessness within

Bad medicine, bad medicine

We need the elders for their wisdom

We need the youth to feel hope

We need to walk in their footsteps

We need to hear the beating of their drums

All those young ones, all those young lives

Alcohol and suicides

And that hopelessness within

Brittany Bearspaw, Oliver Rollinmud, Conrich Holloway, Dallas Stevens, Sherman Labelle, Killian Poucette, Barney Twoyoungmen, Cree Rollinmud

The treaties failed them, governments failed them

Their Chiefs failed them, we have failed them, we have failed them

All those young ones, all those young lives

Alcohol and suicides

And that hopelessness within

Bad medicine, bad medicine, bad medicine

My grandfather would be troubled

© Cori Brewster 2014, coribrewster.com

❖ 1 ❖

How This All Started

From the time I became a lawyer, I had wanted the position of resident judge for Banff. The dockets were usually light and the judge lived in Banff amid the majestic Canadian Rockies, in Banff National Park. In 1993, when I obtained the posting in Canmore, with Banff as part of my circuit, it was like I had won a lottery.

My initial interest in obtaining a judicial appointment had been sparked by Judge Gary Cioni. I think it is ironic that Gary at that time had the distinction of being