Bad Law: Rethinking Justice for a Postcolonial Canada

By Kathleen E. Mahoney

by John Reilly
Rocky Mountain Books
2019/$25.00/240 pp.

This very timely book about legal reform should be read not only by legal professionals but by all those interested in the fair administration of criminal justice, particularly as it applies to the Indigenous peoples of Canada and their unconscionable rates of overrepresentation in the prison system. John Reilly’s 33 years of first-hand experience as an Alberta provincial court judge brings credibility to his call for the radical reform necessary to mend a broken justice system that, in his words, “does more harm than good.” His clear and forceful conclusion—that implementation of Indigenous legal principles into the criminal justice system would greatly improve it for everyone—should be taken very seriously.

Judge Reilly’s book tells the story of how he metamorphosed from being a typical mainstream judge meting out justice based on principles that he naively thought were fair and reasonable, into a “rebel judge” applying Indigenous law according to Indigenous culture. By coming to know and understand the people in the Indigenous communities where he worked, Reilly discovered his own profound ignorance and racism and adjusted his thinking—much to the concern of his superiors in the judiciary and in the broader legal community. For example, he learned from the Stoney First Nation members that one of the differences between the settler way of looking at justice and their way was the use of punishment to deter crime. Where the non-Indigenous system condemns the wrongdoer and punishes him or her, the Indigenous way condemns the wrongful act and seeks to repair the damage and produce benefits for the victim and the community, and help the wrongdoer by reconnecting them with their community.

When he applied these and other Indigenous legal principles in his court, years of conflict with the Department of Justice followed, including ostracization, discipline, and a forced move from his home to work in another jurisdiction where a senior member of the judiciary could monitor him. “My Chief Judge had told me I had lost my objectivity with Aboriginal offenders and ordered me moved out of Canmore,” he states. A judicial review of that order was set in motion, and Judge Reilly was ultimately able to remain on the bench in Canmore, where he continued to apply Indigenous justice concepts in the hope of reshaping the criminal justice system—until he eventually resigned after more than three decades on the bench.

Reilly’s core belief that the current criminal justice system’s focus on punishment of the wrongdoer wastes billions of dollars, destroys lives and does no societal good whatsoever is supported by many cases cited throughout the book. He provides the reader with vivid examples of how the current system is so dysfunctional it often increases crime rather than reducing it. The judge concludes that “the dominant Canadian society should scrap its criminal justice system and replace it with the gentler, and more effective, process used by the Indigenous people,” not only for Indigenous people but for all those coming into contact with the criminal justice system.

The book is at times angry, as well as humorous, and is written in a highly accessible, no-holds-barred conversational style. Reilly’s analysis is wide-ranging, covering topics of punishment, deterrence, due process, sex offences, the futility of the “war on drugs” and the corrosive effects of prison. In each example he demonstrates how Indigenous legal principles could result in a more positive and practical jurisprudence, better public policy and a much improved criminal justice system. In this time of political and social disruption and conflict, Reilly’s powerful indictment of the criminal justice system could be a useful guide for those who seek reconciliation and a peaceful, safe end to historic grievances between First Nations and the rest of Canada.

—Kathleen E. Mahoney is a Calgary-based lawyer and a professor of law at the University of Calgary.

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