A former crown prosecutor makes the case for Indigenous justice

When courts in Saskatchewan delivered a verdict of not guilty in the trial of Gerald Stanley, former northern Saskatchewan crown prosecutor Harold Johnson said he "immediately shut the radio off."

Stanley was charged with killing 22-year-old Colten Boushie from Red Pheasant First Nation on August 9, 2016. The not guilty verdict divided the province and the country. 

Johnson, who is Cree, walked away from a successful career in law because he became convinced the justice system is harming Indigenous people.

The Stanley case spurred him to write a powerful new treatise entitled Peace and Good Order: The Case for Indigenous Justice in Canada. 

His argument is straightforward — that Canadian criminal law does not deliver justice to Indigenous people. He also holds himself responsible for his own actions while he was a member of the legal profession.

Johnson spoke to The Sunday Edition's Michael Enright about his time as a crown prosecutor and the deficiencies when it comes to Indigenous justice in Canada. Here is part of their conversation. 

Michael Enright: You were profoundly unsettled by the Stanley case. How did it affect you?

Harold Johnson: I was already twisting and turning, feeling that I was done with the justice system. I've come to recognize that what I was doing was making the situation in my community worse. When I heard the verdict on the radio. I immediately shut the radio off. I turned off all social media.

You got a note from shortly afterwards from a friend, a former judge. Tell me about that. 

This friend had been a lawyer and a judge in northern Saskatchewan all his career, trying to bring justice into Aboriginal communities. He worked really hard. He was instrumental in the creation of the Cree courts that would get judges who could speak Cree. Then he retired and he went south, back to the farm country. I woke up the next morning and I've got a text message from him that says, 'Harold, I hope this doesn't wake you but I have to reach out to somebody. This is really bothering me. Aboriginal people are not getting justice and it isn't working.'

You grew up in northern Saskatchewan. You didn't come from an impoverished family, right? Your family was doing all right for a while?

My father died when I was eight years old. My mother took over trapping and fishing — she was especially good at trapping muskrat. She's getting about 100 a day. Rats are selling for five to eight dollars apiece. So she's making five to eight hundred dollars a day in 1966.

It's a heck of a long way from northern Saskatchewan to the Harvard Yard. How did that happen?

I was in my mid-30s, working in a uranium mine as a heavy equipment operator, and there's a story going around that says, 'you drive a haul truck, you are stupid.' To prove that Harold Johnson isn't stupid, I quit mining and went to university and just picked the hardest thing they had. It was either law or medicine. I'm queasy around blood, so it had to be law.

I was already becoming an advocate for Aboriginal people when I worked in the mines. I was heavily involved in my trade union and the affirmative action committee, negotiating committee as a steward. I was constantly in front of management arguing for Aboriginal workers. I get to university and work my way through law school. There's another story that says you didn't earn that law degree — they just gave it to you because you're an Indian. So to prove nobody gave me anything, I went to Harvard and got a master's degree and was stuck for 20 years being a lawyer.

Between 2009 and 2013, the incarceration rate for Indigenous people went up 42 per cent. There's only 16.3 per cent Indigenous people in Saskatchewan. Ninety-five per cent of the people that you've prosecuted committed crimes while intoxicated. And 75 per cent of people in Saskatchewan who have AIDS are Indigenous people. It sounds positively horrific.

I kept telling myself that I'm here to help, knowing that I recommend to the judge that you send this man to a correctional centre ... he's going to come back to the community angry. In the short term I could satisfy myself by saying I protected the community from this person throughout the length of the sentence. But, ultimately, it's making the communities worse because they're always coming back and jail was making them worse. This rehabilitation doesn't work. Deterrence does not work.

What are the alternatives? Because the subtitle of your book is A Case for Indigenous Justice in Canada.

My argument relies on the treaties. Treaty Six covers the central part of Saskatchewan, and the concluding clause — and I'm paraphrasing here — says that Indians shall maintain peace and good order amongst themselves and other band of Indians throughout the territory.

Peace and good order are magic words. The Constitution of Canada gives the power of peace, order and good government to the federal government. Peace and good order were mentioned in the Royal Proclamation of 1763, the Upper Canada Act, the Quebec Act. Those words are constitutional words. That is the Queen recognising that Aboriginal people in Treaty Six have jurisdiction over peace and good order, which means their own justice system.

Do you carry with you the feeling that, in a sense, what you did with the law was a betrayal of your own people?

No. As Aboriginal people, our traditional teachings are that we're all humans. We all make mistakes and our purpose on this planet is to learn from those mistakes, to figure it out. And I made mistakes.

Yet you say that you wrote the book Peace and Good Order, in a way, to take on the responsibility of your actions and inactions.

Absolutely. I helped to fill the jails full of Aboriginal people. I am responsible. I now recognise what I did. There's still a lot of people in the system who don't recognise that they are destroying people.

You said you didn't change the system, the system changed you.

It did. 

Where do we go, Mr. Johnson, with all with all of this? It just seems to be insoluble ... and we still have crappy water in 65 reserves across the country.

And we had a minister of justice of Canada who was told to fix the problem with over-incarceration, and she decided that she was going to die on SNC Lavalin, and didn't do anything about over-incarceration of Aboriginal people. 

What I've got to say, though, is that we have to fix it. Canada's not going to. We've been waiting 150 years since treaty, and Canada's never come to help us. We can't wait. And if we don't take over justice and fix it ourselves it's going to be the end of Aboriginal people. It's imperative that Aboriginal people take control of justice and fix it.

Are we going to? Maybe not. Because not only has Canada usurped our jurisdiction over justice, we've abdicated. We don't want to be responsible for sending our cousins out of the community. We don't want to be responsible for fixing things in our communities. It's too easy to just phone the police and let the police deal with the people who are behaving badly, and then let the colonial justice system take care of it. 

This Q&A has been edited for length and clarity. Click 'listen' above to hear the full interview.