Introduction

We can’t solve problems by using the same kind of thinking we used when we created them.

— Albert Einstein

When I was a young lad the term colonialism was a romantic word that conjured up visions of courageous people going out into the wilderness, clearing land for farms and building towns in desolate, forbidding locations. These colonial people were to be admired and respected for their sacrifices, which ultimately enabled future generations to live here in comfort and prosperity.

The early years of white settlement among the Indigenous people had some advantages for the Indigenous people. The fur trade allowed them to use their hunting and trapping skills to obtain tools and weapons made from metal, which was something they didn’t have before the coming of the colonials.

But as time went by things became very bad for the Indigenous people. Diseases the colonials brought, to which they had no immunity, wiped out millions, and as the Indigenous population diminished, the colonial population grew, and eventually the leaders of the new immigrant society decided they wanted to have total control of the Indigenous population. This they took through treaties which the Indigenous people did not understand, and through the use of reserves, residential schools and the Indian Act, which controlled every aspect of the First People’s lives.

Now, the word colonialism has a much different meaning for me. It is the meaning that the Indigenous people have given it for years. It is a word that describes the process by which a foreign immigrant society took control of their lives and destroyed their freedom.

One of the worst aspects of colonialism was the forcing of a foreign system of law upon the Indigenous people. If we, the non-Indigenous people, are going to be truly postcolonial, and truly seek reconciliation, I suggest we should think about adopting their system for ourselves.

My learning in this regard started in the 1990s when I began to inquire as to why there were such disproportionate numbers of Indigenous people appearing in the courtroom where I presided as a judge. What I learned completely changed my thinking about our justice system.

The criminal justice system in Canada, and much more so in the United States, is a mess – the courts are backlogged, cases are dismissed because they can’t be heard in a reasonable time, and there are frequent complaints about inconsistent sentencing and overcrowding in prisons.

From my experience of 40 years in the criminal justice system, 33 of them as a judge in the Provincial Court of Alberta, Criminal Division, I see the system as out of control and doing more harm than good.

The solutions call for more judges, more lawyers, more police, more court workers, and the list goes on.

I experienced national and international notoriety in the mid-1990s because of judgments I wrote, and actions I took, to try to improve the delivery of justice to the Indigenous offenders in my jurisdiction.

The media referred to me as “the controversial judge,” “the fighting judge,” “the renegade judge,” “the outlaw.” (“Renegade judge” was the one my friends on the “rez” liked best.)

I changed the way I thought about justice, and in doing so I believe I applied Einstein’s advice, even though I didn’t think of it that way at the time.

The change began with my efforts to understand why there was such a disproportionate number of Indigenous people appearing in the court where I presided.

Indigenous elders talk about “wisdom stories,” the events of their lives that taught them about living and gave them wisdom. This book is the third part of my own wisdom story.

I told the first part of my story in Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community. I spoke of the cases and the people that influenced my thinking about Canada’s relationship with its Indigenous people. The book is the story of the change in my thinking about our so-called justice system

I told the second part of my story in Bad Judgment: The Myths of First Nations Equality and Judicial Independence in Canada. That book recounts my conflicts with the court administration which were the result of my efforts to apply the law to Indigenous people in a culturally sensitive way.

This, my third book, tells of my dream. My dream of a system that uses the vast resources of the criminal justice apparatus to improve social conditions amongst the people of Canada, a system that helps wrongdoers live better lives instead of just throwing them away by locking them up. It is a dream of a utopian system, but I believe it is a real possibility if only people could see that peace does not come from punishment.

The focus on the punishment of wrongdoing is wrong. If the money and effort that is devoted to punishment were devoted to social betterment, our society would be a better, safer, more peaceful place in which to live.

My experience with Indigenous elders is that they almost never say to a person “you should do this” or “you must do that.” Rather they will say “this is my experience, and this is how I see it.” They leave it to their listener to take whatever lesson they will take. I have found this gentle way of teaching to be a part of the charm that has so endeared them to me.

It is not my nature to be so gentle, but it is my intention in writing this book to describe my experience, and tell how it changed my thinking, in the hope that I might influence the thinking of my readers, and that my readers might change their thinking in relation to justice and in relation to the plight of the Indigenous people of this country.