John Reilly takes tough look at justice system
Author’s second book is an angry one, in which he ‘attacks’ his adversaries
The preface to retired judge John Reilly’s book Bad Judgment was written long before the final report on the Truth and Reconciliation Commission of Canada became public earlier this month. The report, issued to much media attention after a six-year study, concluded in no uncertain terms that the residential school system in Canada constituted “cultural genocide” against our aboriginal people.
Bad Judgment: The Myths of First Nations Equality and Judicial Independence in Canada was released late last year as a followup to Reilly’s controversial 2010 bestselling memoir, Bad Medicine: A Judge’s Struggle for Justice in A First Nations Community. It makes a near identical point in its preface. The harm done by the residential school system, where Canadian aboriginal children were taken from their families and forced to live in abusive, Christian-run institutions, “is not gone. It is incalculable,” Reilly writes. He concludes that the legacy of the system is “generations of institutionalized natives, unable to learn the traditional customs of parenting, and children still suffering from their parents’ lack of traditional knowledge.” In short: cultural genocide. So yes, Reilly admits that the findings of the Truth and Reconciliation Commission offers some vindication and more fuel to the fight he has been waging since the 1990s to prove that the white justice system, in its failure to address the long-term effects of colonization, continues to cause serious harm to First Nations communities. Still, he is not completely satisfied.
“I would agree that it’s good that those wrongs continue to be acknowledged,” says Reilly, in an interview from his home in Canmore. “But I would far rather have seen the government spend $60 million doing something about the problem rather than just studying it. I find it typical of government. When they have a problem they don’t know what to do with, they study it.”
Bad Medicine followed Reilly’s personal journey from by-thebook judge to controversial justice maverick during his tenure on the circuit court in Cochrane, Canmore and Banff, where he had jurisdiction over the Stoney Indian reserve west of Calgary. In 1997, Reilly decided to take action against what he saw as a disproportionate number of aboriginals being brought to his courtroom. Using a new provision in the Criminal Code that encouraged judges to look into the circumstances surrounding aboriginal offenders, he used the case of an alcoholic man charged with beating his wife as a springboard to order a Crown investigation into the conditions on the Stoney reserve. Reilly argued the reserve was so plagued with financial mismanagement by tribal leadership that the accused could not get the alcohol and anger-management treatment he needed. (A two-year probe by the RCMP into misuse of funds exonerated Stoney leadership.)
It ended up pitting him not only against tribal leaders, but also against the system he had served. Applying what Reilly saw as culturally sensitive judgments to the cases he was hearing eventually set off his own legal battles.
The chief judge at the time demanded he be transferred to Calgary, accusing Reilly of having lost objectivity when it came to dealing with aboriginals. Reilly fought the transfer and eventually won. But that draining battle makes up a large portion of Bad Judgment. In some ways, it’s even more personal than his first book and, he admits, much harder to write.
“Friends of mine told me I probably shouldn’t write it because of the damage it would do to my psyche to relive all that and I think there may have been some truth to that,” Reilly says. “Even when I got to the editing stage I could hardly re-read some of it. Bad Medicine was not as difficult to write. Writing that, I recall, was an enjoyable experience because it was allowing me to put down on paper a lot of the things that I wanted to say and talk about. Bad Judgment was really difficult because it went through a lot of years when I was just in continual conflict.”
Not unlike Bad Medicine, Bad Judgment is an angry book and Reilly pulls no punches in naming names. In fact, in an appendix called Allies and Adversaries is dedicated to just that. His allies include his lawyer, the late Alan Hunter, and native court worker Tina Fox. His adversaries include former premier Ralph Klein, who Reilly says spoke out against him after he ordered the investigation into the conditions at the Stoney Indian reserve and likely “motivated others to take action.” He also names his former boss, provincial court chief judge Edward Wachowich and assistant chief judge Brian Stevenson.
“I’ve always liked to think of myself as a peacemaker and Bad Judgment basically attacks a number of the people I was dealing with in that era,” Reilly says. “That was something I didn’t want to do but I did it because it was part of a story.”
Reilly is now writing the third and final part in his trilogy of books. Tentatively titled Bad Law, he plans to “rant about how much I don’t like our justice system.” It will be a broader critique and will include taking aim at one of our system’s key planks: that tough sentences are a deterrent to criminal behaviour. Reilly has long been a critic of our current Conservative government’s tough-on-crime stance. In the 2011 federal election, he ran unsuccessfully as a Liberal candidate in the Wildrose riding. In Bad Law, he will lay out his own views on justice.
“If I had absolute power and influence and control over the justice system, I would go through the prisons and release everybody that does not constitute a danger to society,” he says. “There are dangerous people who have to be separated from society, but I think they constitute a very small percentage of the people we have in jail. The vast majority of the people we have in jail are there on the pretext that it deters others from committing crimes. That’s something I think is a legal fiction. So, with the billions of dollars I would save by shutting down 80 per cent of our prisons, I would have all that money spent on alcohol treatment programs and anger management programs and life skills programs and it would eliminate the need for prisons.”