The purpose of the present chapter is to clarify the legal outlines of the defence presented by Louis Riel in his address to the jury.1 I do not propose to canvass the different views in the literature as to the merits of the two speeches that comprise his address.2 Nor do I propose to deal with the many procedural irregularities in the trial, which much of the recent literature on Riel has minimized.3 Since the current book focuses specifically on Riel’s speeches, I have restricted my comments to those aspects of the process that bear directly on the legal arguments that he presented in his address to the jury. Although Riel was a political rather than a legal figure, and his speeches serve as a kind of political testament, they also contain two substantive defences to the charge before the court. The remarkable fact is that this has largely been overlooked.
The legal mechanics of Riel’s address to the jury are a product of the crosscurrents in the trial. This accounts for the two factors that explain the legal composition of the address to the jury. The first factor is that Riel wanted to distance himself from the defence of insanity. The second factor is that he wanted to vindicate his actions legally. Although it is the second factor that is significant substantively, the literature on Riel has generally focused on his psychological state and the insanity defence.
The first factor in the formation of Riel’s address to the jury had its origins in his lawyers’ decision not to contest the merits of the case. The most defensible explanation for this decision, professionally, lies in the makeup of the jury. At the outset of the trial, the defence lawyers challenged the jury panel on the basis that the magistrate had personally selected the members of the panel.4 When this challenge failed, and the jurors were chosen, the defence was left with a jury without francophones, Catholics, or Métis. The trial was accordingly in the hands of a magistrate and a jury, all of whom were anglophones and Protestants.5 This was the sector of society that was the least sympathetic to any argument that the actions of the Métis could be justified.
This feature of the trial almost certainly played a significant part in determining why none of the defence lawyers dared to suggest that the so-called “rebellion” could be justified.6 If this is the case, however, it seems to overlook the political facts on the ground, which were a good deal more complicated than the victory of the Canadian troops suggested. Many people in the North-West blamed the government for the uprising. It is nevertheless clear that the jury panel had been “sifted,” since it appears to have been composed of those elements of society who had a personal stake in the Canadian government’s assertion of sovereignty over the territories.
The issues raised by the composition of the jury are fundamental. The Declaration Which Offences Shall Be Adjudged Treason of 1351, under which Riel was charged, leaves it to the jury to decide the verdict on a charge of high treason.7 This prerogative was given to the jury because the charge of treason had been used by the king to silence individuals who raised legitimate grievances against the state. The statute gave the people the final say in determining whether the actions of the accused constituted treason.
The plain fact of the matter is that the jury that tried Riel was not representative of the community and did not include his peers. Those elements of the community who were most likely to sympathize with his actions and his cause had been left out. This posed a major problem for the defence lawyers and raised ethical issues, since the participation of a lawyer in an unfair trial only lends it legitimacy. At this distance, one can only assume that the lawyers believed that any defence on the merits of the case would antagonize the magistrate and the jury – and ensure Riel’s conviction. They accordingly looked for some other means of defence.
However, there are less attractive explanations for the lawyers’ conduct lurking in the background. The leading lawyers for the defence were from Quebec and Upper Canada and did not share the regional sympathies of their client. Both Charles Fitzpatrick and François-Xavier Lemieux had judicial aspirations and probably had a personal interest in arguing insanity, since a plea of insanity meant that they did not have to attack the actions of those in political power in the courtroom.8 The transcript of the trial makes it clear that the lawyers were quite unable to grasp the idea that the legal authority of Canada to enter the North-West Territories and use force against the inhabitants could be questioned in the courtroom.
It follows that the chief merit of the insanity defence from a tactical perspective was that it allowed the lawyers to plead for mercy without challenging the hard-held attitudes of the magistrate and the jury. The attractions of such a strategy from a political perspective were considerable. If Riel was insane, there was no need to justify the actions of the Métis or to determine whether they had a right to defend themselves. The nettlesome question of whether the Canadian government should have sent in troops could be ignored altogether.
The suggestion in the literature that the decision of the lawyers to advance the defence of insanity was based on a simple assessment of Riel’s condition is naive. There was a significant degree of psychological manipulation in such a defence, which was attractive primarily because it would allow the jurors to express sympathy for Riel without calling their views of the conflict into question. However, there was also a patronizing element in such a tactic, which undermined the credibility of the Métis cause and catered to the racial prejudices of the time. Morally and historically, the defence lawyers took the victors’ side, and refused to question the legitimacy of the government’s actions.
The defence of insanity also came at a price. Indeed, the argument that Riel was insane was not a defence in the ordinary sense of the word, since the Crown took the position that the rules of pleading allowed the defence to either dispute the substance of the charges or admit the charges and argue insanity. The same line of reasoning appears in the magistrate’s instructions to the jury.9 As a result, the decision of the defence lawyers to pursue the defence of insanity was premised on the assumption that Riel had committed an act of treason and released the Crown of its usual burden in proving the charge.
The immediate problem for the defence lawyers was that Riel rejected the strategy that they had adopted. Riel took the position that he was sane and felt that he had a defence on the merits of the case. This created tensions between Riel and his lawyers, which erupted into open conflict when Riel interrupted the proceedings and asked to cross-examine Charles Nolin. The transcript of the trial makes it clear that Riel was objecting to the failure of his lawyers to challenge the Crown’s substantive case. “The witnesses are passing,” Riel is recorded as saying, “and so are the opportunities.”10
The defence lawyers responded scornfully. Charles Fitzpatrick stated on the record that Riel must not be allowed to interfere in their conduct of the case. When Riel continued to protest, the lawyers threatened to withdraw from the case. This was too much for Riel, who suffered from grandiosity, and the trial proceeded on the basis of the insanity defence. The insistence of the lawyers set up an impossible situation, however, since the defence that Riel wanted to advance and the defence advanced by his lawyers were incompatible. When Riel addressed the jurors, he accordingly asked them to reject the defence advanced by his own lawyers. He then advanced a defence on the merits of the case, which his lawyers had essentially admitted. The dynamics were hopeless.
The conduct of the defence lawyers raises a number of professional concerns. Their handling of the case was ill-considered and maladroit.11 They also failed in their duty to their client, however, in at least two respects. The first failure was simply that they refused to take instructions from their client. This cannot be justified: nothing in the record suggests that Riel was incapable of instructing counsel. The second failure was that they refused to scrutinize the case put forward by the Crown.12
This is not a matter of applying contemporary standards to professionals who worked in different historical circumstances. John Langbein, the foremost authority in the area, has written that defence lawyers were originally prohibited in trials for treason. This ban was lifted in 1696 because the Crown had begun to use lawyers to prosecute such cases. “Thus, the main rationale for the 1696 Act was evening up for the Crown’s perceived advantages in prosecuting treason.”13
The change in courtroom practice recognized that there was a “larger pattern of disadvantage for treason Defendants.”14 This disadvantage was a reflection of the political nature of such charges, which had often been used to suppress individuals who dared to challenge those in political power.
The same kind of rationale explains why English judges gave individuals charged with crimes a general right to counsel in the eighteenth century. The increasing use of lawyers to prosecute cases had led to many miscarriages of justice: Langbein opines that the adversarial nature of the common law process had brought out “the potential for distortion and fabrication” in the use of professional prosecutors.15 Defence lawyers were allowed into the process in order to test the evidence presented by professional prosecutors, which “needed probing.”16
This historical rationale is significant in the context of Riel’s trial, since the lawyers who prosecuted Riel were highly partisan. Although Thomas Flanagan has argued that the fairness of Riel’s trial can be judged only by comparing it to other trials of the time, comparisons are difficult, as J.M. Bumsted writes, because Riel was the only individual tried for high treason.17 Bumsted nevertheless argues that the decision to try Riel for such an offence – which carried a mandatory sentence of death – shows that he was singled out for special treatment. It is not possible to settle the matter here, but Bob Beal and Barry Wright have provided ample evidence that the “justice system in all the 1885 rebellion cases demonstrated elements of harshness and carelessness unusual for the day.”18
The transcript of Riel’s trial makes it clear that the prosecutors were implacable. The competence of the defence lawyers in the face of the prosecution is also questionable. The principal issue, however, is that the defence lawyers neglected their responsibilities to their client. Riel’s complaint that his lawyers were not cross-examining the witnesses was perfectly legitimate, and rather than probe the evidence led by the Crown, the defence lawyers insisted that the magistrate silence the accused. This essentially tells us that they were not willing to represent Riel if he insisted on defending himself on the merits of the case. The professional lapses are so severe that the trial process fits more easily into our idea of a mistrial.19 This suggests that the case should not have gone to the jury.
The capitulation on the substantive charge before the court was almost total. It was collusion in practice, if not intention, and the defence lawyers must clearly bear the principal responsibility for depriving Riel of his substantive defence. There was a kind of betrayal in this, since they were obviously assigned with the responsibility to defend him. George Goulet has argued with a good deal of justification that the defence lawyers’ reliance on the insanity defence simply diverted attention from the government’s actions, which were highly disreputable. As a result, Riel was “deprived of his right to make full answer and defence” by his own lawyers.20 Bumsted reaches a similar conclusion, observing that “Riel’s own lawyers were the people who were most responsible for his failure to receive justice in 1885.”21
It is true that the defence lawyers faced a difficult task, and the transcript of the trial makes it clear that the magistrate was determined to keep any suggestion that Riel might have a defence out of reach of the jury. However, this is no excuse: I am speaking as a trial lawyer when I say that a lawyer faced with such a situation should continue to press his client’s case. The proper response would have been to force the magistrate’s hand, so that the unfairness of the process appeared on the surface of the record. Riel’s lawyers should have insisted that the magistrate rule openly, explicitly and repeatedly, and with reasons, in order to prepare the necessary grounds for an appeal.22 Nor is this all; in a political case like Riel’s, a trial serves a historical purpose, and it is wrong to sidestep the issues in the case. Bumsted has grasped the right dynamic and argues that the defence lawyers should have persisted in their demand for the documentary evidence that the Crown refused to produce. Instead, the defence gave in to the magistrate and the Crown and chose not to press the matter.23
The conduct of the defence lawyers is hard to understand. At a minimum, they should have put Riel’s position before the court and the jury, whatever their views of its merits, and let the jury decide whether he had a defence. Thus the most striking feature of the trial from a professional perspective is not that the defence lawyers rejected their client’s instructions; it is that they assumed the substantive elements of the offence had been made out. This assumption left only insanity, which Riel disputed, but in peril of his life, since that left the jury with nothing but the lawyer’s assumption that he had committed the offence before the court. It was the jurors who understood that the lawyers had put them in an impossible situation and that Riel was arguing for his own conviction. Indeed, the jury foreman wept as he read the verdict.24
The legal predicament in which Riel found himself at the end of the trial can only be described as bizarre. I say this because Riel’s major purpose in addressing the jury was to refute both of the positions adopted by his lawyers: that he was insane and that he had no substantive defence. His argument on the substantive question has been obscured by the endless discussion of insanity in the literature and by a tacit assumption that Canada’s hold on the North-West Territories was beyond the reach of the trial. It is the second argument, however, that raises the more significant legal issues.
Riel’s first goal in addressing the jury was accordingly to refute the argument of the defence that he was insane. At the outset of his remarks, he asks the jury not to interpret his “natural excitement,” and his opening prayer, as any indicia that his mind is “out of its ordinary condition.”25 Riel declares that he has no wish to “play” insanity and implicitly accuses his lawyers of fabricating the defence in a misguided attempt to save him.
Riel acknowledged that he was taking the same position as the Crown. In fact, he thanked the prosecution for their work in “destroying” the testimony of Dr François Roy, who testified for the defence. “Even if I was going to be sentenced by you, gentlemen of the jury, I have this satisfaction if I die – that if I die I will not be reputed by all men as insane, as a lunatic.”26 It is not clear that Riel fully appreciated that insanity had become the only issue in the trial and that the jury’s finding that he was sane would only secure his conviction for high treason.27
It is clear, however, that the jurors understood the dilemma in which they found themselves. In spite of this, they took Riel’s side on the matter and rejected the insanity defence. The merits of their decision in this regard are better dealt with elsewhere. Since the purpose of this chapter is merely to sketch out the legal arguments in Riel’s address to the jury, it is enough to say that the first goal of this address was accordingly met.28 This left only his arguments on the merits, which were never seriously considered, and were never put to the jury.
Riel’s second goal in his address to the jury was to defend himself on the substance of the charge. As a political figure, he clearly saw the trial as a historical opportunity to vindicate his people’s cause. This carried a certain raw danger in the political climate of the time, and might have taken the trial directly into politics, but Riel seems to have recognized that he was in a legal forum and based his defence on legal principles. The fact that stands out professionally is that his lawyers refused to follow his instructions and seem to have been more concerned about the damage that this might do to their reputations.29
The information against Riel alleged that he had levied and made war against the Queen. This was high treason and a grave breach of a citizen’s duty of allegiance to the Crown. Riel’s legal response is muddied by his oratory, his many personal references, and his inevitable confusion, which reflects the fact that he was essentially representing himself. It is nevertheless possible to discern two substantive submissions in Riel’s address to the jury.
The first substantive submission in the address to the jury is that the actions of the Government of Canada in the North-West were inherently illegitimate, since it did not enjoy sovereignty over the territories. It was therefore an invader and had no hold on the loyalties of the Métis. The second submission – which contains Riel’s personal response to the charges – is that the Métis had a right to defend themselves from the force that attacked them. They had accordingly “acted reasonably and in self-defence.” The clarity of the second submission is lost in Riel’s final rhetorical flourish, when he inverts the argument against him and alleges that the Government of Canada is insane.
The initial difficulty in assessing Riel’s defence on the merits of the case is that the lawyers refused to acknowledge that the trial raised any substantive issues. As a result, there are only incidental references to the substantive issues that Riel raises in the record of the trial and the appeal.30 This is a telling defect, and in retrospect one has to wonder whether the lawyers knew that an analysis of Riel’s substantive defence would take them into uncomfortable places. In any event, it was trial by assumption. The Crown simply took the position that the fact of the rebellion was plain and did not admit of a defence; the magistrate agreed. The defence lawyers refused to challenge the Crown’s position and joined implicitly in the assumption.
The trial accordingly proceeded on the premise that there was an unlawful rebellion. It followed that anyone who participated in the rebellion had committed treason. Although Charles Fitzpatrick alluded to the historical grievances of the Métis in his jury address, these were put forward in mitigation rather than as a defence. The only person who challenged the rhetorical assumption that the Métis had rebelled against the lawfully constituted Government of the North-West Territories was Riel himself.
The magistrate put the substantive question very simply in his instructions to the jury and stated that, in his opinion, they “must” conclude that there was a rebellion. He then suggested that Riel had participated in the rebellion – and had therefore committed treason. The only material question on his instructions was whether Riel’s mental state had relieved him of criminal responsibility.31 If the jury found him sane, it was accordingly left only with a single verdict: guilty as charged.
The best that can be said of Riel’s trial is accordingly that there was a trial on the issue of insanity. It follows that any evaluation of Riel’s substantive defences is speculative. This is even more difficult without a re-enactment of the trial, since the evidence that should have been adduced by the defence was largely lacking. It is nevertheless possible to reconstruct the outline of Riel’s substantive defence on the basis of his address to the jury. One of the things that stands out in such a reconstruction is that Riel saw himself as a statesman and recognized that the trial raised legal and constitutional issues that went far beyond the question of his guilt.
Riel had received some training as a lawyer in Montreal, and whatever its rhetorical merits, the most that can be said without further inquiry is that his address to the jury contains the elements of a viable defence on the merits of the case. In spite of this, there has been remarkably little debate in the historical literature as to the plausibility of such a defence. Some of this is probably a testament to the formidable influence of Thomas Flanagan, who has clearly taken the government’s side in the trial. J.M. Bumsted has critiqued Flanagan’s position in “Another Look at the Riel Trial for Treason.” Bumsted’s view deserves attention: he writes that Riel “wanted a defence based upon ‘the merit of my actions,’” in effect justifying his rebellion in terms of the misconduct of the Canadian government in the North-West.32
Flanagan insists that Riel’s choice of strategy in this regard was “legally hopeless because a government’s mistakes can never be a sufficient defence against the charge of treason, at least as long as the same government continues to rule, and every lawyer would doubtless agree in principle.”33 This kind of comment rests on a number of assumptions as to the legitimacy of the actions of the Government of Canada in the North-West. It goes without saying that this is unsatisfactory: the main point in Riel’s submissions was that these actions were illegitimate, and it is no answer to suggest that the fact of political power is sufficient to justify itself.
The questions raised by Riel’s substantive arguments cannot be dismissed so easily. One question that Bumsted raises is whether Riel’s substantive defence had any possibility of success. If nothing else, the prominence of jury nullification in the common law tradition lends support to Bumsted’s suggestion that a jury might have acquitted Riel if his lawyers had tried to mount a proper defence. The injustice of Canada’s conduct in the territories was well known, and Riel cut a sympathetic figure in the courtroom. Douglas Linder cites a letter that one of the jurors later wrote to a member of Parliament complaining that the trial was unfair: “Had the Government done their duty and redressed the grievances of the half-breeds of Saskatchewan … there would never have been a second Riel Rebellion, and consequently no prisoner to try and condemn.”34
One of the deeper problems with the historical literature is that it suggests the real test of a substantive defence is whether it will succeed. However, this is a political rather than a legal test, and the question of whether Riel had a valid substantive defence exists independently of the question of whether the court was prepared to hear it. The possibility of an acquittal is accordingly a secondary issue.
Riel’s underlying position was that the Government of Canada had no legal sovereignty over the North-West. Its actions were therefore illegitimate. This raises an important question regarding the terminology that has been used to describe the hostilities in the North-West. That question is whether there was a “rebellion”? The use of such a term is contentious, since it assumes that the Métis had risen up against the legitimate authority of the Canadian government. This was in fact the major substantive issue in the case. Riel’s position was that Canada had annexed the North-West by force, without the consent of the people. The decision of the Canadian government to send in Canadian troops was accordingly a decision to invade another country. This helps to explain Riel’s indignation in his address to the jury: it was positively “insane” to describe the actions of the Métis in response to the Canadian invasion as a “rebellion.”
Riel’s basic submission in his address to the jury is that Canada did not have de facto or de jure government of the North-West Territories. As a result, the Métis had no duty of allegiance to the Queen in right of Canada. It follows that there was no breach of duty and that the charge of high treason had not been proven. This argument deserves serious consideration, in spite of the fact that it was ignored by the lawyers, who simply assumed that Canada had government of the North-West Territories at the time that the violence broke out. The historical literature makes the same mistake and does not distinguish adequately between the different allegiances that came into play in the case. If Riel and the Métis owed a duty of allegiance to the Queen – a proposition that he ultimately rejected – it was an allegiance to the Queen of England, not the Queen in right of Canada.
The public position of the Government of Canada was that it had purchased the North-West Territories from the Hudson’s Bay Company in 1869 and therefore enjoyed sovereignty in the North-West. Riel contested this position on two related fronts. His first line of argument was that the British Crown, under whom the Hudson’s Bay Company had held the territories, had long since abandoned its title to government and could not convey it to the company. This was the position he took, after his conviction, when he petitioned the president of the United States: “The undersigned your humble petitioner, submits that … the British Government have forfeited long ago all title and right of governing the North-West.”35 His second line of argument was that the Hudson’s Bay Company had never received any title to government and accordingly could not convey it.
Riel is too excited to keep his arguments apart and merges his position with regard to the British Crown, the Hudson’s Bay Company, and the Canadian government in a single argument. If Canada had acquired rights over the territories (a position he rejected), it too had forfeited those rights, like the British Crown and the Hudson’s Bay Company before it. “When I came into the North-West in July, the first of July 1884,” Riel complains to the jury, “I found the Indians suffering. I found the half-breeds eating the rotten pork of the Hudson Bay Company and getting sick and weak every day. Although a half-breed, and having no pretension to help the whites, I also paid attention to them. I saw they were deprived of responsible government, I saw that they were deprived of their public liberties.”36 A government that fails in its duties to the people has no legal hold on their loyalties.
Riel’s address to the jury reflects the politics of the time. There had been an undisguised competition for government of the North-West Territories. Tensions had arisen between the traditional inhabitants of the territories and the settlers who had come in under the auspices of the Canadian government. There was no clear dividing line, however, and people on both sides of the conflict shared a general feeling of resentment toward the Canadian government. Riel accordingly makes a broader argument, which takes its force from the fact that the territories were under the administration of the lieutenant governor and were governed basically by decree. In his submission, which has a distinctly American flavour, this was government without representation. The North-West Council, which ostensibly governed the territories, he argues, was “only a sham representative legislature and no representative government at all.”
Riel’s second argument on the merits was that the Métis were defending themselves. He was therefore entitled to an acquittal. Riel’s argument in this regard was based on the inherent right of a people to preserve itself, which was historically seen more as a duty than a right. This idea is present in Riel’s submissions to the jury, since he took the position that the Métis had no choice but to defend themselves. Although there are differences between the collective right of a people to defend itself and a personal right of self-defence, it seems clear that each of these defences entails the other.37 In either case, the fundamental feature of self-defence, like the legal doctrines of necessity and compulsion, is that it supersedes our ordinary legal obligations.
If Riel was right in arguing that the Government of Canada was an invader, his submission that the Métis had the right to use justifiable force in defending themselves seems to provide a complete answer to the charge. Even if the Government of Canada had some claim on the loyalties of the North-Westerners, however, there are other doctrines that apply. Patrick J. Charles has written that the doctrine of lawful rebellion reached its high point in England during the “Glorious Revolution” of 1688-89 and was taken up again in the American Revolution.38 The doctrine was at least arguably a tenet of the common law and was relied upon to justify the use of force by Parliament to “restore” the Constitution if a king abused the laws, liberties, religion, and estates of the people. Charles argues that it is the doctrine of lawful rebellion that provides the real source of the right to bear arms that is found in the American Constitution.
Riel accordingly had a respectable argument that the rebellion against the Queen in right of Canada – if the Crown was right in characterizing it as a “rebellion” – was lawful and necessary to preserve the people. The political genesis of such an argument is clearly significant. In a pamphlet written in 1643, Stephen Marshall argues that “a people, especially the representative body of a State, may (after all humble Remonstrances) defend themselves against the unlawfull violence of the Sup[reme] Magistrate … Endeavoring … to deprive them of their lawfull Liberties.”39 William Prynne actually describes the king who “offers violence” to the people as rebellious, since the king has his own duty of allegiance to the people.40
The exact formulation of these arguments seems less important in a courtroom than their appeal to a jury’s natural sense of justice. In his address to the jury, Riel submits that the Métis had brought their grievances to the attention of the Government of Canada. Rather than redress these grievances, the government had invaded the country. “By the testimony laid before you during my trial witnesses on both sides made it certain that petition after petition had been sent to the Federal Government, and so irresponsible is that Government to the North-West that in the course of several years besides doing nothing to satisfy the people of this great land, it has even hardly been able to answer once or to give a single response.”41 It was the Canadian government that had accordingly failed to honour the loyalties that it owed to the people.
There is no mistaking Riel’s position. The government has deprived the people of their liberties. It has oppressed and attacked them.42
The agitation in the North-West Territories would have been constitutional, and would certainly be constitutional to-day if, in my opinion, we had not been attacked. Perhaps the Crown has not been able to find out the particulars, that we were attacked, but as we were on the scene it was easy to understand. When we sent petitions to the Government, they used to answer us by sending police, and when the rumors were increasing every day that Riel had been shot here or there, or that Riel was going to be shot by such and such a man, the police would not pay any attention to it.43
The ethical plea in this appeal is unmistakeable. How could the Métis be liable in law for defending themselves, as defend themselves they must?44 There is an echo of William Prynne at the end of Riel’s address to the jury. Like earlier revolutionaries, and with considerable justification, Riel reverses the charge against him and argues that it is the government and the Queen in right of Canada that have committed treason against the people.45
This is not the place to pursue these arguments any further. The discussion in this chapter is nevertheless enough to set out the substantive defences that Riel raised in his address to the jury. As we have seen, Riel was alone in raising these defences. Instead of following his instructions, the defence lawyers attacked him on another front and argued that he was insane. This was a tacit surrender: Riel’s oratory had its impact on the jury, who recommended mercy, but the point was moot and the merits of the case were never seriously examined.46 There may be a good historical argument that this was inevitable in the overheated and rather uneasy political climate of the time. Those excuses are long past, however, and it is evident that a reconsideration of the merits of the case against Louis Riel is long overdue.
1 References to the trial transcript, including Riel’s address to the jury, are to Desmond Morton, ed., The Queen v Louis Riel: Canada’s Greatest State Trial (Toronto: University of Toronto Press, 1974), subsequently referred to as The Queen v LR. The same material is available in Douglas Linder, Louis Riel Trial, 1885, Famous Trials website (2004), http://law2.umkc.edu/faculty/projects/ftrials/riel/riel.html (accessed 12 September 2013), along with the decision of the Court of Queen’s Bench of Manitoba on appeal and the decision of the Privy Council refusing leave to appeal.
2 See the discussion at the beginning of Hans V. Hansen’s chapter in this volume.
3 These irregularities have received considerable attention on the political as well as the historical front. See, for example, the website of David Kilgour, the member of Parliament for Edmonton-Beaumont, at http://www.davidkilgour.com (accessed 30 September 2013): “Should the presiding magistrate, Hugh Richardson, as a member of the anti-Catholic Orange Order and a part-time magistrate serving only at the pleasure of the federal government, not have disqualified himself from the case? Why was the trial held in Regina and not in Winnipeg? Why were the six jurors selected all English-speaking Protestants who were thus obliged to depend on interpreters for much of the testimony? Why did Judge Richardson select the names of the 36 prospective jurors?”
4 The Queen v LR, 14: “Mr. Fitzpatrick: … the number [of jurors] is immaterial, whether 12, 20 or 25, if the summoning of the jury is not of such a nature as to guarantee a proper and fit trial. That is the point Lord Coke refers to when he says the appointment of the sheriff is taken out of the hands of the Crown, because, in a case in which the Crown might be a party, he might be suspected of having returned a corrupt jury, and surely this is one of these cases.”
5 See George F.G. Stanley, Louis Riel (Toronto: McGraw-Hill Ryerson, 1963), 347.
6 See The Queen v LR, 229, where one of Riel’s lawyers states, “I do not want to justify the rebellion.”
7 See A Declaration Which Offences Shall Be Adjudged Treason of 1351, 25 Edw. 3, stat. 5, which is available in the official repository of uk statutes at http://www.legislation.gov.uk (accessed 29 September 2013). The relevant provision makes it an offence to “levy War against our Lord the King in his Realm … and thereof be … attainted of open Deed by [the People] of their Condition.” The word “attainted” refers to a legal finding that “taints” an accused in the eyes of the law and therefore deprives him of his civil rights.
8 See J.M. Bumsted, “Another Look at the Riel Trial for Treason,” in Canadian State Trials, vol. 3, Political Trials and Security Measures, 1840–1914, ed. Barry Wright and Susan Binnie, 411–50 (Toronto: Published for the Osgoode Society for Canadian Legal History by University of Toronto Press, 2009), 444. Both men later became chief justices – one of Canada and the other of Quebec. It is notable that Fitzpatrick’s criticisms of the Canadian government in his address to the jury were incidental and did not challenge the legitimacy of its actions in the territories.
9 The Crown took full advantage of the fact that Riel was tried at an awkward time in the history of the insanity defence, when the law was still in a state of flux.
10 The Queen v LR, 208.
11 Bumsted writes in “Another Look,” 430–2, that the conduct of the trial by the defence lawyers left a good deal to be desired. It is evident, for example, that the defence did not realize that Riel was being tried under the Statute of Treasons of 1352 rather than the Dominion’s Lawless Agressions Act, also known as the Fenian Act of 1867, 31 Vict., c. 14, until the end of a “bungled” first day. Bumsted is apparently referring to A Declaration Which Offences Shall Be Adjudged Treason of 1351, which is cited in note 7.
12 See Bumsted, “Another Look,” 440: “In his two speeches to the jury, Riel suggested the outlines of a defence based on his actions. Three observations can be made about Riel’s arguments. First, as far as was humanly possible, his own lawyers attempted to discredit Riel’s perfectly rational discussion of the politics of the rebellion and his reasons for the rebellion by presenting him as insane. Secondly, Riel was forced to spend far too much time and energy defending his sanity. Thirdly, the defence did not call many witnesses or introduce documentation attempting to demonstrate the truth of Riel’s criticisms of government policy in the west. Indeed, it allowed the Crown to evade the production of evidence that Riel regarded as essential to his case.”
13 John H. Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58, no. 2 (July 1999): 314–65, at 317. There is a relatively new literature in the field of history that deals with the origins of the lawyer’s role in common law criminal trials. This literature includes Langbein’s The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003); David J.A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon, 1998); Stephan Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1990): 498–609; David Lemmings, “Criminal Trial Procedure in Eighteenth-Century England: The Impact of Lawyers,” Journal of Legal History 26 (2005): 63–70; and Allyson May, “Advocates and Truth-Seeking in the Old Bailey Courtroom,” Journal of Legal History 26 (2005): 71–7.
14 Ibid., 341.
15 Ibid., 356.
16 Ibid., 321.
17 See Bumsted, “Another Look,” 420: “There are really no standards of comparison for high treason trials conducted in Canada in 1885, since Riel was the only insurrectionist of that year tried under the Statute of Treasons of 1352. (This is in fact A Declaration Which Offences Shall Be Adjudged Treason, which is cited in note 7, under which treason was a capital offence.) The other 1885 convictions were for the lesser offence of treason-felony [which was not a capital offence], as were the 1848 Irish treason trials and the 1883 English cases involving the Fenian ‘dynamiters.’” Bumsted is responding to the position developed by Thomas Flanagan in Riel and the Rebellion: 1885 Reconsidered (Saskatchewan: Western Producer Prairie Books, 1983) and Louis ‘David’ Riel: ‘Prophet of the New World,’2nd ed. (Toronto: University of Toronto Press, 1996), where he argues that the fairness of Riel’s trial can be judged only in accordance with the standards of the time. From a moral and a legal perspective, this idea seems fallacious, since it is entirely possible that the legal process of the time was inherently unfair. This is certainly true of the trials of the natives who were charged for their participation in the conflict.
18 Bob Beal and Barry Wright, “Summary and Incompetent Justice: Legal Responses to the 1885 Crisis,” in Canadian State Trials, vol. 3, Political Trials and Security Measures, 1840–1914, ed. Barry Wright and Susan Binnie, 353–410 (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2009), 353.
19 The general legal test of whether an accused was deprived of the right to counsel is whether the assistance of counsel was “ineffective.” See R. v. X.X.S., for example, at 2006 Can LII 20 (onsc). The situation in the case of Riel goes far beyond such issues, however, since the conduct of the defence lawyers aided the prosecution.
20 George R.D. Goulet, The Trial of Louis Riel: Justice and Mercy Denied (Calgary: Tellwell, 1999), 139.
21 Bumsted, “Another Look,” 445.
22 A review of the transcript in The Queen v LR makes it clear that the magistrate was avoiding such rulings, which are easily appealed.
23 See Bumsted, “Another Look,” 434: “More and continued pressure on all the points in this defence initiative was what was required, not least to force Justice Richardson into rulings that could be challenged on appeal. Instead, the defence focused on the insanity defence.”
24 See Douglas Linder, “The Trial of Louis Riel” (2007), http://papers.ssrn.com (accessed 30 September 2013): “The jury of six men deliberated Riel’s fate for an hour. They filed back into the courtroom. The foreman, Francis Cosgrove, ‘crying like a baby’ announced the verdict. ‘Guilty,’ he said, and then added, ‘Your Honor, I have been asked by my brother jurors to recommend the prisoner to the mercy of the Crown.’”
25 See the first paragraph of Riel’s address to the jury in The Queen v LR, 311: “Your Honors, gentlemen of the jury: It would be easy for me today to play insanity, because the circumstances are such as to excite any man, and under the natural excitement of what is taking place today (I cannot speak English very well, but am trying to do so, because most of those here speak English), under the excitement which my trial causes me would justify me not to appear as usual, but with my mind out of its ordinary condition. I hope with the help of God I will maintain calmness and decorum as suits this honorable court, this honorable jury.”
26 The Queen v LR, 316.
27 The Queen v LR, 324: “If you pronounce in favor of the Crown, which contends that I am responsible, acquit me all the same.” Riel may have been asking the jury to refuse to follow the instructions of the magistrate and nullify the case, but the conduct of his own lawyers was against him. The groundwork for nullification had not been done. The magistrate and the Crown had made sure moreover that the jury was made up of individuals who were unlikely to nullify the process.
28 Legally it needs to be said that the decision of the jury deserves some deference. The jurors had a natural grasp of the habits of the time and were in a better position than we are to judge the normality of Riel’s conduct.
29 The response of François-Xavier Lemieux, Riel’s lead, was merely to hold Riel accountable for the consequences. See The Queen v LR, 311: “MR. LEMIEUX: May it please your Honors. At a former stage of the trial you will remember that the prisoner wished to cross-examine the witnesses, we objected at the time, thinking that it was better for the interest of the prisoner that we should do so. The prisoner at this stage is entitled to make any statement he likes to the jury and he has been so warned by your Honor, but I must declare before the court that we must not be considered responsible for any declaration he may make.”
30 There are hints in the written decisions from the Manitoba Court of Queen’s Bench that the defence may have tried to raise the substantive issues in the oral arguments before that court. However, the written decisions from the court do not address these issues seriously.
31 See The Queen v LR, 346–7: “I will be very brief in making what remarks I have to make to you. The questions really for you to determine are, first, are you satisfied that there was a rebellion? If you are satisfied that there was a rebellion, as I think you must be, the first question I will ask then is it brought home conclusively to you that the prisoner at the bar was implicated? In charges of this sort there are no classes, no accessories, all are principals. If you are conclusively convinced that the prisoner was implicated, then has anything been shown here to relieve him from responsibility?”
32 Bumsted, “Another Look,” 131.
33 The quotation from Flanagan is from Riel and the Rebellion, which is cited in ibid., 130n17.
34 Linder, “Trial of Louis Riel.”
35 See “Message to Congress from President Harrison,” 11 March 1889, in Douglas Linder, Louis Riel Trial, 1885, Famous Trials website (2004), as cited in note 1.
36 The Queen v LR, 312.
37 Indeed, the collective manifestation of the right was apparently described, simply, as “self-defence” during the course of the American Revolution.
38 Patrick J. Charles, “The Right of Self-Preservation and Resistance: A True Legal and Historical Understanding of the Anglo-American Right to Arms,” Cardozo Law Review de novo 18 (2010): 18–60.
39 Quoted in ibid., 28n56.
40 Quoted in ibid., 27n51.
41 The Queen v LR, 324.
42 The word “liberty” casts a larger net in this context than it does in its current usage and includes the perquisites and benefits that come with our membership in society.
43 The Queen v LR, 317.
44 Many of the facts in the case bear out Riel’s argument that the actions of the Métis were defensive in nature. Riel argued, for example, that he chose not to request the assistance of “the nationalities” across the border (The Queen v LR, 321). This was a conscious decision not to wage war. Riel had also ordered Gabriel Dumont not to attack the Canadian troops as they advanced.
45 It is plain that Riel was a skilled orator and enjoyed sudden reversals and other dramatic devices, which heightened the emotional impact of his speeches. Whether this served the purposes of legal analysis is another matter.
46 There were many ways that the substantive issues could have been addressed by the defence lawyers, if only in protest, and it is the completeness of their surrender in this regard that merits attention.