Bad Medicine - Revised & Updated: A Judge’s Struggle for Justice in a First Nations Community – Revised & Updated

By John Reilly

John Reilly’s first book, Bad Medicine, was an immediate sensation and Canadian bestseller that sparked controversy and elicited praise nationwide for its honest portrayal of First Nations tribal corruption. This revised and updated edition details the latest legal developments surrounding tribal leadership and the state of governance on Canadian reserves.


Early in his career, Judge John Reilly did everything by the book. His jurisdiction included a First Nations community plagued by suicide, addiction, poverty, violence and corruption. He steadily handed out prison sentences with little regard for long-term consequences and even less knowledge as to why crime was so rampant on the reserve in the first place.


In an unprecedented move that pitted him against his superiors, the legal system he was part of, and one of Canada’s best-known Indian chiefs, the Reverend Dr. Chief John Snow, Judge Reilly ordered an investigation into the tragic and corrupt conditions on the reserve. A flurry of media attention ensued. Some labelled him a racist; others thought he should be removed from his post, claiming he had lost his objectivity. But many on the Stoney Reserve hailed him a hero as he attempted to uncover the dark challenges and difficult history many First Nations communities face.


John Reilly’s experiences and prescriptions for change provide an enlightening and timely perspective. He shows us why harsher punishments for offenders don’t necessarily make our societies safer, why the white justice system is failing First Nations communities, why jail time is not the cure-all answer some think it to be, and how corruption continues to plague tribal leadership.

• Language: English
• Publisher: RMB Rocky Mountain Books
• Release date: Sep 10, 2019
• ISBN: 9781771601955

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 Medicine

A Judge’s Struggle for Justice in a First Nations Community

Revised and Updated

by John Reilly

To Laura

❖

Contents

Preface

Acknowledgements

Introduction

1 My Father’s Drum

2 My Circumstances

3 My Aboriginal Education

4 Tina Fox

5 The Reverend Doctor Chief John Snow

6 Marlon House

7 Ernest Hunter

8 The Wesley Cemetery

9 Rose Auger

10 Ruth Gorman

11 The Investigation

12 Media Coverage

13 The Hunter Case Continues

14 Baret Labelle

15 Sherman Labelle

16 Bad Medicine

17 The Chiefs Complain

18 The Aftermath

19 Reflections

Epilogue: The Return of Bad Medicine

Appendix A

Appendix B

Further Reading

Index of Names

Preface

When I wrote this book in 2010, I was telling the story of recent events. Now those events are history, but the history is relevant today because of the ongoing struggle of Indigenous People and the progress they are making.

I was a judge for 33 years. In my judicial career I did three really important things: I ordered an investigation into financial mismanagement and political corruption on the Stoney Indian reserve. I wrote this book. And I resigned.

When I became the permanently assigned judge for the First Nations community at Morley, Alberta, I made it a mission to learn about the Stoneys.

It was my opinion that the amendment to the Criminal Code in 1996 that directed judges on sentencing to pay particular attention to the circumstances of Aboriginal offenders required me to learn what their circumstances were.

What I learned about the history of the treatment of the Indigenous People in Canada shocked and upset me. The fact that I had been totally ignorant of this history until I was nearly 50 years old, and had been a judge for nearly 20 years before I learned about these things, was a big part of my upset.

However, in discussions with my fellow judges and others, I came to see that I was not alone in my ignorance. The more I learned, the more concerned I became about this lack of awareness of the circumstances of Aboriginal people generally, not just Aboriginal offenders.

I ordered the investigation into political corruption and financial mismanagement on the reserve because it was my conclusion that these were relevant circumstances of Aboriginal offenders. It was also my naïve expectation that if people knew about these things, something would be done to change them.

I experienced the harsh reality that there was a greater motivation to keep them hidden. The premier of the day, Ralph Klein, and his minister of justice and attorney general, Jon Havelock, publicly criticized me and moved to have my order set aside. My chief judge said I had lost my objectivity with Aboriginal offenders and ordered me moved out of the jurisdiction.

The measures taken to silence me simply motivated me to become more proactive. Writing this book about the people and the cases that influenced my thinking was part of my effort.

Eventually I resigned because I had become so disillusioned with the Canadian criminal justice system that I no longer wanted to be part of it. The ultimate deciding factor was the package of justice amendments proposed by the Harper Conservatives. The changes would predictably increase the number of young people, and especially young Aboriginal people, in prisons. I could not tolerate the thought of having to apply those laws and I could no longer tolerate the restrictions on my ability to speak publicly that came with being a judge.

After resigning I accepted the Liberal nomination for the constituency of Wildrose in the election of 2011. The nomination wasn’t much of a plum in the Conservative wasteland of Alberta, and my one foray into the political arena was of course a disaster. It wasn’t political suicide, because I didn’t have a political life, but it did allow me to speak freely. Not that I had been totally restrained in my comments from the bench.

Also, I don’t think it would have been proper for me to publish my second book, Bad Judgment: The Myths of First Nations Equality and Judicial Independence in Canada, while I was still sitting as a judge, given that the book tells of my legal battles with the court administration and the provincial government, and is critical of both.

Since the publication of those first two books there have been some amazing developments in the advancement of Indigenous Peoples. Many of my friends tell me that my work has contributed to the changes that are happening. While I would not go that far, I do take pride in the fact that I was at least part of the process that is contributing to public awareness of the plight of Indigenous People and the resolve to make their lives better.

A significant international step in this regard was the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the General Assembly on September 13, 2007. Unfortunately Canada was one of four votes against, along with New Zealand, Australia and the United States.

The document is a comprehensive international instrument on the rights of the Indigenous Peoples of the world. It establishes a framework of minimum standards for their survival, dignity and well-being.

In Canada some years later there was significant improvement in the advancement of Indigenous Peoples with the election of the government of Justin Trudeau on October 19, 2015. In his first cabinet he appointed Jody Wilson-Raybould, an Indigenous woman, as justice minister and attorney general.

On May 10, 2016, there were cheers at the UN when Canada’s Minister of Crown/Indigenous Relations, Carolyn Bennett, announced that Canada had officially rescinded its objector status and declared itself a full supporter of UNDRIP.

Since then Parliament has passed Bill 26, An Act to Ensure that the Laws of Canada Are in Harmony with UNDRIP. As I write this (April 2019) its passage by the Senate is pending. This will be an important step in the advancement of Indigenous People in Canada and I will be elated to see it.

Another event that I see as a huge step forward was Prime Minister Trudeau’s address to the United Nations General Assembly on September 21, 2017. He spoke of the plight of Canada’s Indigenous People and the responsibility to change it. I expect that having announced this in the international forum will make it difficult for future Canadian governments to change the policies, as they will be subject to international scrutiny.

One of my greatest difficulties in my efforts to improve justice for Indigenous People was to make the higher courts take notice of the historical causes of present-day dysfunction. Trudeau’s address to the UN would have been a huge help to me.

Another tremendous event was the summary report of the Truth and Reconciliation Commission, Honouring the Truth, Reconciling for the Future. The commission had been established in June of 2008 as part of the Residential Schools Settlement Agreement. They spent four years travelling to different parts of Canada, hearing the testimony of more than 6,500 Indigenous People who had been taken away from their families and placed in residential schools as children.

The final report was released in December 2015, and it has been helpful in my efforts to explain to people the results of residential schools. I see the official recognition of the genocidal nature of the residential school program and its intergenerational effects as both a confirmation of my position and a source of hope for the future of Canada’s Indigenous People.

I was frustrated in my attempts to get help from INAC (Indian and Northern Affairs Canada, now called Indigenous and Northern Affairs Canada), which so dominates Indigenous People. So I was delighted with the prime minister’s announcement on August 28, 2017, that there would now be two ministries within the department: a Minister of Crown–Indigenous Relations and Northern Affairs, and an Indigenous Services Minister.

This was a step recommended by the Royal Commission on Aboriginal Peoples in 1996. In doing this the prime minister stated that the ambitions of his government cannot be achieved through existing colonial structures, and this is also a step toward doing away with the Indian Act.

So, much of what I was saying in my judgments in the 1990s has been confirmed and supported by these subsequent events. I wonder if the reaction to my proactive conduct in Aboriginal justice would have been different if it had come after the developments of the last few years instead of preceding them by 20 years.

Unfortunately I don’t think it would have been different at all. My efforts to explain the intergenerational consequences of residential schools were frequently met with arguments every bit as trenchantly obtuse as those of climate change deniers today. There is something in human nature that prefers the status quo to any change, even change which will be for the greater good. There are also those who benefit from the status quo and will seek to preserve it no matter how much harm it does.

I accused INAC of being one of the worst offenders. It seemed to me that if they could magically transform every Aboriginal reserve and community into a healthy, happy, prosperous place, they would all be out of a job, and so they were doing nothing to advance any such eventual outcome. I am hopeful that the progress accomplished so far will continue and that there will actually be real change.

Unfortunately, not much changed at Morley. Ernest Wesley was again Chief of the Wesley First Nation (a division of the Stoney Nakoda people) until the election in 2018, but he seemed more interested in consolidating his power than in rejuvenating his education programs that did so well in the 1990s. He lost the election to Cliff Poucette, whom I find to be a much more easygoing, pleasant man, but he was Chief when the tribal CEO at the time, Greg Varricchio, fired educator Yvonne DePeel (see the Epilogue). It gives me little hope that Cliff will bring about change for the better.

Aaron Young is again Chief of the Chiniki First Nation, but he has been asked to step down by a group of the Elders because of financial and personal difficulties. The restaurant and cultural centre in the landmark building at the junction of Morley Road and the Trans-Canada Highway opened for about a year during his term but closed in November last year.

Darcy Dixon is Chief of the Bearspaw First Nation. His declared expenses are the highest of the three Chiefs, but his division of the Stoney people is the only one that is not seriously in debt.

My old friend and ally Greg Twoyoungmen is leading a movement to have the reserve return to the one-Chief system. He has a legal argument based on the fact that a referendum result in 1972 called for one Chief. The idea was subsequently sabotaged by John Snow when he lost the election to Frank Kaquitts, but the change back to each division having its own Chief was not the result of a referendum and may therefore be unlawful. I certainly wish Greg luck with his effort, because in my view the three-Chief system is the biggest obstacle to social development on the reserve. It not only costs millions of dollars to support the three Chiefs and twelve councillors – together with four separate administrations, one for each of the divisions and one for the whole reserve – but I see the infighting as an obstacle to progress.

Greg Twoyoungmen is, as usual, very outspoken in his criticism of the tribal government(s), and they have replied by suing him for defamation. I see this as an example of the restriction of free speech that is a serious problem on the reserve.

Tina Fox, at 76, continues to work as a counsellor at the elementary school and stays cheerful in spite of tremendous personal losses. She was honoured in 2018 with an Integrity Award presented by the Rotary Club of Cochrane.

I wrote Bad Medicine with the intention of telling my story in three books. The first would be about the people and the cases that influenced my thinking on the plight of the Stoney in particular and of Indigenous People in Canada generally. The second book would recount my struggle with the administration of my court and the government of Alberta, while the third would tell of my changed thinking about the justice system.

This third book is largely my dream about what a justice system could be if those making the decisions were truly people of good will. It probably won’t happen in my lifetime, but since some of the things I only dreamed of in relation to Indigenous People seem to be actually happening now, perhaps my dreams in relation to justice will also become reality.

I have now completed the manuscript of that third book, which I call Bad Law: Rethinking Justice for a Postcolonial Canada. I am grateful to RMB (formerly Rocky Mountain Books) and to publisher Don Gorman for agreeing to publish the third book and for suggesting this revised edition of the present one.

Acknowledgements

In the production of the book:

The Georgetown Research Institute, especially Bob Sandford, and Paul Carrick, who prodded me into writing. My publisher, Don Gorman, who suggested the title and gave me soft deadlines. Joe Wilderson, who made great improvements in the text and made it seem like I was doing it all myself. My sons, Sean and Jamie, and my daughters, Tara and Carlyn, for their prodding and encouragement.

Everyone else who encouraged me to write: Warren and Mary Anna Harbeck, Professor Tony Hall, Nomi Whalen, Stephanie Jardine, Jacqueline Kay and Ruth Gorman (RIP).

In surviving the conflict:

Laura, my warrior bride, who wouldn’t let me give up.

My lawyer, Alan Hunter, QC, who devoted his considerable legal talent to my many legal battles and became a friend and mentor in the process (may his soul Rest in Peace), his wife, Ginnie, who kept us fed and cheerful as we worked at it.

The members of the Stoney Nation who taught me about life and relationship and encouraged me to believe I was making a difference: Tina Fox, Marjorie Powderface, Bert Wildman (RIP), Lazarus and Lilly Wesley (RIP), Greg Twoyoungmen, John Robinson and Pauline Twoyoungmen, Wilfred Fox, Aaron and Angela Young, Roland Rollinmud, and Ernest and Belva Wesley.

Members of the media who informed the public of the plight of Aboriginal people and supported my view that the first step in solving the problem is to acknowledge it. Kim Lunman, Bob Beaty, Mark Lowey, Kevin Martin, Linda Slobodian,Vicki Megrath, Lisa Dempster, Sherri Zickefoose, Camie Leard, Jeff Adams, David Heyman, Monte Stewart, Suzanne Wilton, Nick Devlin, Monica Andreeff, Steve Chase, David Burke, Daffyd Roderick, Mario Toneguzzi, Sheldon Alberts, Bill Kaufmann, Sean Gordon, Catherine Ford, Dale Eisler, Kyra Hoggan, Ben Smales, David Bercuson, Barry Cooper, Steve Pearlstein, Jack Tennant and Peter Cheney.

Others who gave me support and encouragement:

Rose Auger (RIP), John Chief Moon, Dale Auger (RIP), Hansen Twoyoungmen (RIP), Harley and Lois Frank, Garth Pritchard, Jeff and Aileen Williams, Mary Stacey and Jeffrey Perkins.

The judges and court staff who helped me feel a little less like an outsider in the judicial system:

Judge David Tilley (RIP), Judge Pierre Dubé (RIP), Judge Bert Oliver (RIP), Judge Albert Ludwig, Judge Herb Allard, Judge Doug McDonald, Judge Manfred DeLong, Judge Tony Demong (RIP), Judges Don Fraser and Judy Little of Kenora, Ontario, Justice Robert Reilly, Ontario High Court, Judge Syd Wood, Clare Jarman, Keith Kloster (RIP), Sandra Furlonger, Aleya Trott, Jenny Wood, Joyce Sudsbury, Laureen Allary, Roselyn Balanquit-Bernardo, and last but certainly not least, the current Chief Judge of the Provincial Court of Alberta, the Honourable Gail Vickery.

As I was living through the events described in this book, I often felt very alone. As I wrote this page, I realized I had a lot of support and I am grateful to all of those I have mentioned and apologize to those I have missed.

Introduction

As the judge who had the primary jurisdiction over the Stoney Indian reserve at Morley, Alberta, in the Rocky Mountain foothills just west of Calgary, I became aware of the frightening dysfunction that plagues this reserve and is often typical of reserves across Canada. I resolved to do everything in my power to help these people. My efforts drew me into unexpected conflict, but my conflict was much less of a struggle than what Aboriginal people face every day.

When my chief judge ordered me to leave Canmore because in his opinion I had lost my objectivity with Aboriginal offenders, I became discouraged and just wanted to give in. My wife, Laura, said to me, You started this fight to help the Stoneys. Are you just going to turn your back on them?

Another day, when she and I were discussing the possibility of being forced out of our home, she said to me, You know, we are really lucky. Tired of the struggle, I asked her what she meant.

She said, We chose this fight. The Stoneys are born into it. They don’t get a choice.

In the spring of 1996 I had made a promise to make my court accessible, understandable and effective for the Stoney people. In order to do so, I tried to learn as much as I could about them. My thought was that if I could explain our legal system to them in terms they would understand, they would embrace it and they would see that, even though the system sends people to prison, it is really about protecting people from being punished wrongfully.

What I learned about the Stoneys, but mostly what I learned from them, changed my life forever. My life became much harder but much better. Harder because my thinking about justice, punishment, relationships and life in general changed, and this put me in conflict with many of my colleagues. I had been the Joe Clark of the Alberta judicial system. I had learned the law and applied it without question. I got along with everyone. I was appointed a judge at 30 years of age because, like Joe Clark, I hadn’t offended anyone. But after 20 years on the bench, I was getting to know a whole community of people who seemed to view my glorious justice system as an instrument of their oppression, and I was inclined to agree with them.

Everyone who speaks about the difficulties faced by Indigenous communities seems to have some trite explanation of these difficulties: residential schools, the reserve system, Indian Act government, broken treaties, policies of assimilation. Everyone also seems to have some trite solution: repeal the Indian Act, divide the reserves and issue private land titles, stop giving them handouts, educate them, assimilate them. It’s more than a little ironic that some of the suggested solutions are largely what caused the problems in the first place.

My own trite explanation of the problems is: bad medicine. My trite solution is: good medicine.