Courting Controversy

An Alberta judge recalls his battles with First Nations, his legal colleagues and the media.

If you were expecting to read an academic text analyzing justice issues faced by aboriginal peoples in Canada, or a legal text that explained the complex reasons why aboriginal people are overrepresented in the justice system, you would be as disappointed as I was after reading John Reilly’s Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community. Instead, this book is an odd hybrid of autobiography and newspaper editorial that is more of a tell-all than anything else.

One of the youngest judges ever appointed to the bench, John Reilly served 33 years as a judge in Alberta and gained considerable notoriety while doing so. He admits that nepotism may well have played a part in his appointment given that his father’s uncle was mayor of Calgary, and another family member, Louis St. Laurent, was prime minister of Canada. After he retired from the bench in 2008, he served as a supernumerary judge until his resignation in March 2011 so that he could run—unsuccessfully—for the Liberal Party in Alberta.

Reilly’s notoriety stems from his actions while sitting as a provincial court judge, where the majority of his criminal cases involved band members from the Stoney Indian Reserve in Morley, Alberta. The cases before him often involved alcohol- and violence-related offences and in his early years he was happy to see so many “Indians” in his courtroom so that he could “get through 30 to 50 cases before lunch.”

But gradually things changed as the judge began familiarizing himself with social conditions on the reserve. The issue that sparked the controversy surrounding Reilly was the 1997 judgement he wrote that ordered an investigation into the alleged corruption of Stoney political leaders, the factor he considered to be the real reason for the level of crime among community members. It was the fact that Reilly made unsubstantiated allegations against aboriginal people not charged or before his court that drew so much criticism from First Nations and his own legal peers. The controversy led to a media frenzy and to various formal complaints and lawsuits against him.

The book describes, in a rather confusing manner, Reilly’s personal journey in getting to know the Stoney people and how, on a professional level, he tried to find alternatives to the endless cycle of convicting and sentencing Stoney community members to prison, which he had come to see as unjust.

Reilly sets the context for the controversy by explaining in the introduction that the Stoney communities, like most First Nations in Canada, suffer from “frightening dysfunction.” He also shares his opinion that the usual explanations—residential schools, policies of assimilation, the reserve system, Indian Act governance and broken treaties—are all too “trite” to fully explain the problems. Furthermore, he argues that all of the solutions offered to date (i.e., repeal the Indian Act, privatize reserve lands, educate aboriginal peoples and/or assimilate them) are equally trite and many had in fact been the root cause of the dysfunction to begin with.

The real explanation or root cause of social ills in First Nations, according to Reilly, is “bad medicine.” He does not explain what bad medicine means in his introduction and as the book develops he refers back to the concept, but only vaguely. The closest he comes to a definition is this: “This belief, in Native spirituality, is that the spirits of the dead continue to have an influence on the living. In some cases control by those spirits can be devastating. It is believed that people who do wrong do so because bad spirits are controlling them.” His lack of a full explanation of the concept of bad medicine is a real drawback, especially since his solution for bad medicine is “good medicine,” which is also left largely unexplained.

The book provides the reader with a glimpse into Reilly’s sense of connection with the Stoney people. His father had been friends with John Laurie, the founder of the Indian Association of Alberta, and it was through that friendship that Reilly himself felt a “spiritual connection” with the Stoney people. He describes his privileged upbringing and writes that from that background, he developed a very ethnocentric view of aboriginal peoples that he incorporated into the way he handled their criminal cases. He describes himself as “an arrogant, rednecked, ignorant white man” who relished applying the law against aboriginal people. It was not until he read the 1991 Report of the Task Force on the Criminal Justice System and Its Impact on the Indian and Métis People of Alberta that he decided to get to know the Stoney People.

The chapters then focus on individual Stoney members, with information about their personal situations and how they fit into Reilly’s journey of discovery. Tina Fox, for example, was a Native court worker; Rose Auger and Ruth Gorman were friends and supporters; the Reverend Doctor John Snow was a chief; and others such as Marlon House, Ernest Hunter and Baret Labelle were offenders who were central figures in some of Reilly’s more controversial judgements. Each individual is cast in the light of good or evil with corresponding good and bad characteristics based on whether they supported Reilly’s campaign to expose alleged corruption on the reserve.

The late chief John Snow plays a large role in Reilly’s book as the evil villain who was allegedly a controlling, manipulative “dictator” in his community. Reilly’s biggest critique of Snow was that he did not offer funding for the kinds of rehabilitation requested by Reilly for offenders.

I was looking forward to meeting Chief Snow. I was still impressed by his reputation as one of the most outstanding chiefs in Canada, an ordained minister in the United Church and the recipient of two honorary doctorates from the University of Calgary … I also remember the hair standing up on the back of my neck when I shook his hand. It was an eerie feeling. I have since come to the conclusion that I was being touched by the most evil man I have ever encountered.

Chief Philomene Stevens, who also did not take Reilly’s side, was characterized as a bad chief, based on rumours Reilly had heard about her and his own conjecture.

Philomene Stevens was a morbidly obese little woman who was said to have a Grade 4 education. It is possible she didn’t even know how to read … It is likely that Philomene’s election as chief was due in large part to money paid out by her father…It was easy to imagine that John Snow could control Philomene Stevens’s vote. From my observation of her, she must have thought she was sitting next to God himself when she sat next to John Snow.

Reilly’s friend Yvonne DePeel, who supported him, is described in a much different light.

Yvonne is an attractive woman, of medium height and a slim build, her hair is blond and her eyes seem to change colour from green to blue depending on the light and the surrounding colours. Far more than her appearance, her attractiveness comes from her dedication to children, her energy, her humour and her enthusiasm.

It is through this lens of good versus evil that the book is written.

The one notable exception is Ernest Wesley, whom Reilly considered a friend until Wesley was elected as chief and advocated to have the three communities of the Stoney Nakoda Nation—the Bearspaw, the Chiniki and the Wesley—become separate bands, a decision that Reilly felt was not the right path for the Stoney people. It is ironic that one of the few Stoneys that Reilly considered a “good” person is currently being investigated for misappropriation of funds. Some might wonder about Reilly’s professional judgement and whether he was ever objective in the legal sense during the time he sat on the bench.

Apart from these very personal profiles, both positive and negative, the book describes the key piece of reasoning that moved Reilly to stop tossing dozens of aboriginal people in jail and to look for root causes instead. He found it in the 1996 amendments to the Criminal Code, specifically in section 718.2(e), which reads: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” Faced with a specific case in which Ernest Hunter pled guilty to brutally assaulting his common-law wife, Reilly reasoned thus:

The precedents were clear. This was a case requiring a term of imprisonment. But if the court [the Court of Appeal] knew what was going on in this community—the extent of the violence and dysfunction, the political corruption and financial mismanagement that contributed to that dysfunction and perpetuated it by failing to address it—if I could put these things on the record, the Court of Appeal might see the problems a man like Hunter was facing.

However, Reilly went far beyond the jurisdiction of the Criminal Code to try singlehandedly to address systemic issues of discrimination by delving into First Nations politics and ignoring constitutional issues.

Similarly, in a proceeding that related to the suicide of Sherman Labelle, Reilly again went beyond the scope of the Fatalities Inquiries Act and accused community leaders of nepotism and corruption. He went further and made a series of recommendations premised on a recounting of aboriginal history in Canada that he largely learned from the 1996 Report of the Royal Commission on Aboriginal Peoples. Reilly made nine key recommendations to bring about social change, some of which included the provincial department of justice setting up a special branch to prosecute aboriginal crimes that would have “unrestricted authority” and supporting the abolition of Indian and Northern Affairs Canada. The bulk of these recommendations related to the province asserting some form of legal and financial responsibility and jurisdictional control over the First Nations.

Yet, despite the significance of the justice issues facing aboriginal peoples, the largest chapter of the book is Chapter 12, called “Media Coverage.” It is a tedious recounting of the newspaper articles and quotes people made about Reilly, all of which he found “amusing.” Throughout the entire book, he described the notoriety he gained from his accusations against First Nations leaders as “gratifying.” He also describes in detail his many speaking engagements, awards and “good press,” including a feature article in Saturday Night magazine, a cover story in Canadian Lawyer and a full-page article in The Washington Post.

One cannot help getting the sense as each chapter progresses that the book is more about Reilly gaining notoriety for himself than about highlighting the many social and legal inequities facing the Stoney people who bore the brunt of the media frenzy in their community.

This almost narcissistic attitude of seeing the issue as being “all about him” may go a long way toward explaining why Reilly was ordered transferred to another jurisdiction for lack of objectivity; why the minister of justice found that Reilly had exceeded his authority in writing such extra-curricular judgements; why he was criticized by the chief justice as an “embarrassment” to the judicial system; why a formal complaint against him was found to have merit; and why there is currently a lawsuit filed against him.

Generally speaking, books dealing with social justice issues faced by aboriginal peoples in Canada are targeted to wider audiences that can include lawyers, academics, government, aboriginal communities and the public at large. Where this book is more of an autobiography, it would appeal to a much smaller audience who may have an interest in Canadian personalities. Yet this book is promoted as “a mustread for anyone connected with Canada’s legal system.” Justice Sal LoVecchio, who had to hear the appeal against Reilly’s order, held that “accusing some members of the community of essentially criminal conduct is inappropriate” as these First Nations leaders were never charged or afforded any due process. Even if I excluded the issue of Reilly’s numerous unfounded allegations, I still am not so sure that this book has any legal value.

One might expect of a book dealing with the justice system an analysis of current statistics related to the arrests, deaths in custody and the over-incarceration of aboriginal peoples, and how these issues could practically be considered in sentencing or how to prevent these issues to begin with. Aside from a general notion of rehabilitation and the possible use of sentencing circles, all of which have been addressed by numerous reports, inquiries and studies already, there is nothing new or innovative in Reilly’s findings or recommendations. In addition, he does not take into account the laws and jurisdictions involved in implementing his recommendations. For example, he just assumes that the province can walk onto a reserve and unilaterally take over health, education or justice issues despite the Indian Act, the constitutional division of powers giving Canada jurisdiction with regard to Indians and reserves, or the constitutionally protected rights of First Nations to be self-governing.

My biggest concern with this book is the overall message contained within it. While Reilly appears to critique those who would advocate for the assimilation of aboriginal peoples as a solution to the current social ills, he seems to advocate the very same thing by recommending “programs be established or research done to assist Aboriginal people in adaptation to white society.” In his view, “Aboriginals have been so crippled by the history of abuse that they cannot overcome their past without outside help” and “serious work must be done to help them adapt to life as it is today.” While the book is promoted as advocating a “non-racist approach” that would better serve First Nations, this is hard to reconcile with Reilly’s categorization of First Nations leaders and communities as “evil,” “dictators” of “banana republic[s]” that are “violent, dysfunctional ghettos” full of “tribal tyranny.”

Reilly’s recommendations are not only incompatible with Canadian law and treaty arrangements, but they also reflect an underlying paternalism that completely ignores First Nations views and aspirations. It is very true that many First Nations suffer from extreme levels of discrimination, poverty, violence, suicide and disease coupled with lack of education and employment. However, Reilly would have us believe that all of these issues stem from “corrupt” First Nations leaders instead of from years of colonial oppression and assimilatory policies like residential schools and the Indian Act. Even Prime Minister Stephen Harper has acknowledged the intergenerational effects these policies have had on First Nations communities.

Since Bad Medicine has been published, another complaint has been found against Reilly to the provincial judicial council and the panel found the complaint had merit. For someone so opposed to the aboriginal “industry,” he seems to have no problem using social problems in First Nations to gain fame and possibly sell books. It seems to me that this book is more about a judge’s struggle for notoriety than about justice for First Nations.