Memoirs of a maverick First Nations community judge
By Michael Rappaport
“Don’t judge a man till you have walked two moons in his moccasins” – goes an old aboriginal saying. At the beginning of his career, retired Justice John Reilly presided over a jurisdiction that included a First Nations community west of Calgary that was plagued with addiction, crime, suicide, violence and corruption; the freshman judge confides he knew nothing of the aboriginals whom he passed sentence on and didn’t care, because he applied the law like a mathematical formula.
Twenty years later, Reilly returned to his former posting, only this time he resolved to learn about the lives of the aboriginals who appeared before him. What Reilly witnessed pushed him to order an investigation into political corruption and financial mismanagement on the reserve – which sparked a media firestorm and put him on a path of conflict with powerful First Nations chiefs and his own chief justice.
Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community by John Reilly is a blend of autobiography, documentary, gospel and treatise, which offers a dose of “good medicine” to counter the “frightening dysfunction” that plagues reservations. Appointed to the bench at the tender age of 30, on June 21, 1977, Reilly had the distinction of being the youngest person to be named a judge in the history of Alberta.
Initially, Reilly was assigned to the Provincial Court of Alberta in Cochrane, a former coal mining town nestled in the Rocky Mountain foothills west of Calgary. On the western edge of his jurisdiction lay the Stoney First Nations reserve. All charges laid in Stoney were heard in Reilly’s courthouse in Cochrane. Although at the time he knew nothing about the Stoney people, he felt that it didn’t matter.
“The wisdom of the day was that you treat everyone equally by treating everyone the same. Therefore, you didn’t have to know anything about the individuals you were dealing with,” Reilly writes. Subsequently, he came to see “this attitude as racism.”
In 1992, Reilly was transferred to Banff/Canmore and the number of aboriginal offenders he saw in his court dwindled. But in 1996, Cochrane was added to Reilly’s circuit and once again he had jurisdiction over the Stoney reserve. Although Reilly was presiding over familiar territory, his attitude had undergone a seismic shift. He had read Justice Robert Allan Cawsey’s report on the impact of the criminal justice system on aboriginal peoples in Alberta and many of the findings had hit home.
After reading the report, Reilly assigned himself the task of getting to know the Stoney people. He writes that this was a task which was all the more difficult because there was hardly anyone on the reserve whom he hadn’t sent to jail or wasn’t related to someone he had sent to jail.
Visiting the reserve, Reilly saw first hand the corruption, poverty and despair which pervaded aboriginal communities. He was outraged by the behaviour of Chief John Snow, who “ruled the reserve like a dictator of a banana republic,” siphoning off the royalties and revenue which flowed into the reserve for himself, his family and his cronies. He was shocked by the high level of drug and alcohol abuse, number of children in care and staggering suicide rate, which was six times the national average. Yet he was also impressed by the healing circles and native concepts of restorative justice and the resilience of the Stoney people.
Nineteen ninety-six, the year that the Stoney reserve again fell under Reilly’s jurisdiction, also marked the year in which major amendments to the Criminal Code’s sentencing provisions came into effect. Before 1996, there were no provisions in the Code to direct judges in sentencing. The Code set out maximum penalties in terms of fines and imprisonment for each offence, but judges relied on precedent for deciding sentences. Among the 1996 amendments to the Code in sentencing guidelines were ss. 718, 718.1 and 718.2 which set out the purpose and principles of sentencing.
Reilly seized upon the last five words of s. 718.2(e), which instructed judges to consider the “circumstances of the Aboriginal offenders” , as an opportunity to create a whole new approach to sentencing for them. He decided to use a domestic assault matter as a test case for applying the new provisions.
On June 26, 1997, Reilly used the sentencing hearing of Ernest Hunter, a Stoney who suffered from alcoholism and was charged with assaulting his common-law wife while drunk, as a pretext to order an investigation into the political corruption and financial mismanagement on the Stoney Indian reserve. In particular, he wanted to uncover why a reserve with millions in royalties from oil and timber and millions in revenue from federal government coffers had no money to fund alcohol addiction or anger management programs.
The order to launch an investigation into the “circumstances” on the Stoney Indian reserve was fiercely resisted. Chief John Snow called the order outrageous and racist, and later lodged a formal complaint against Reilly with the Chief Judge of Alberta. The Alberta Justice Minister John Havelock sought to have Reilly’s order quashed.
The controversy garnered headlines from coast to coast, including a full page story in The Washington Post. On Sept. 26, 1997, the scope of the order was reduced by the Alberta Court of Queen’s Bench. Even though the investigation produced by Alberta Justice on Nov. 14, 1997 did not address all of Reilly’s concerns, it did succeed in drawing attention to the plight of the Stoney Indians.
About two years after the report was released, the Supreme Court of Canada gave force and direction to s. 718.2(e) of the Code dealing with the “circumstances of the Aboriginal offenders” in R. v. Gladue,  S.C.J. No. 19.
In Bad Medicine, Reilly provides a plan for treating the maladies which afflict reserves. He argues that aboriginals have been so crippled by a history of abuse that they cannot overcome their past without outside intervention.
Help, alas, does not appear to be forthcoming. Aboriginals are under federal jurisdiction. Prosecution of crime is a provincial matter. When aboriginals complain of corruption on the reserve to the department of Indian and Northern Affairs, they are told to report it to the provincial authorities. In turn, the provincial authorities pass the buck back to the feds. To dramatically change this bureaucratic boondoggle, Reilly writes, would take joint action from Parliament, all 10 provincial legislatures, the three territorial assemblies and 633 First Nation chiefs.
The Honourable Justice Reilly has walked two moons in the moccasins of the Stoney Indians. We should heed the lessons he learned on his journey.