Justice and Mercy Denied
by: George R.D. Goulet
The trial, conviction and execution of Louis Riel for high treason were unjust and unfair from a number of perspectives. These included
(a) a presiding magistrate wo was not independent and who was biased and whose magisterial acumen left something to be desired;
(b) improper judicial and political participation and tampering at the highest level;
(c) failure of Riel to be provided wit a "full answer and defence" (to which the law entitled him) to the charges;
(d) serious deficiencies in defence counsels' representation of Riel; and,
(e) the illegal application in Canada of the 1351 Statute of Treasons to the charges against Riel resulting in his illegal conviction and execution.
These points are well canvassed in the body of this treatise. However, the following briefly summarizes them.
(a) Magistrate's Bias and Lack of Independence and Acumen
In the House of Commons, Liberal Leader Edward Blake pointed out Magistrate Richardson's lack of independence. Blake stated that the magistrate in the Riel trial was "the political law officer to the Government in the Territories" answerable to the Attorney-General. appointed and paid a salary during the pleasure of the government, and the recipient of other "special favours"(318). Blake then cited Richardson's special favours. Richardson's bias was manifested:
(i) in his reference to "the evil influence of leading spirits of the Manitoba troubles" (of whom Riel was the chief leading spirit);
(ii) by his participation at a meeting with police, government and Hudson's Bay Company officials on March 12, 1885 which concluded that Riel and his supporters should not be permitted to continue their agitation;
(iii) by his personal selection of a jury panel made up almost exclusively of persons of Anglo-Saxon extraction; and
(iv) in the highly prejudicial remarks he made in his charge to the jury.
Richardson held the lowly post of magistrate but presided over a trial for high treason, categorized by Crown counsel Osler in his very first opening remarks to the jury as "the highest crime known to the law". In response to the lengthy arguments of both defence and Crown counsel relating to the question of jurisdiction, which at times ascended to lofty heights of eloquence, Richardson made a ruling in less than a dozen words without giving reasons. Seated beside him Justice of the Peace Henry LeJeune, while warming the bench, said absolutely nothing from the beginning to the end of the trial. In his charge to the jury, Richardson treated the charges against Riel as one. He failed to point out to the jury:
(i) the difference between local allegiance and natural allegiance;
(ii) the absence of proof, with respect to the first three charges, that Riel was a British subject and hence these charges hadn't been proven;
(iii) that the provisions of the British Naturalization Act, 1870 or the Canadian Naturalization Act, 1881 each provided that a person ceased to be a British subject on voluntarily becoming naturalized in a foreign state;
(iv) that the indictment contained six counts and in the circumstances they should consider and bring in a verdict on each count separately;
(v) that the 1351 Statute of Treasons required that treasonous acts of levying war must occur "in the Realm" and that this meant "in England, Wales and adjacent narrow seas"; and
(vi) that liability to execution required a strict interpretation of the penal law, that Canada was not part of the Realm within the meaning of the 1351 Statute of Treasons, and if they found no acts occured "in the Realm" all charges must be dismissed.
(b) Judicial and Political Improprieties
The meddling of Chief Justice Wallbridge (the local "informant" in Manitoba for Prime Minister John A. McDonald, who had appointed Wallbridge to the position of Chief Justice) is evidenced by Minister of Justice Alexander Campbell's letter of April 13, 1885 to Prime Minister John A. McDonald. This letter also includes a bias against Riel and the Metis. In this letter Campbell stated that Wallbridge wrote about the "difficulty" of a high treason trial in Winnipeg. However, there was no reference to any judicial difficulty, only to the rights which Riel and others would have in Winnipeg, rights which they would not have in the North-West Territories.
Wallbridge was wearing his old political hat, not his judicial robes, when he wrote his former fellow speaker and fellow Parliamentarian Campbell. The fact that Wallbridge subsequently presided over the appeal court hearing Riel's appeal, after having written to Campbell and having received a "private" letter from Campbell. was improper. Campbell's private letter to Wallbridge to speed up the Manitoba Court of Queen's Bench decision in the Conner case (a decision which was then to have a direct effect on how matters would proceed in the Riel case) was also improper. Not many days after Campbell informed McDonald of this "private" letter, the Court of Queen's Bench delivered its judgment in the Conner case. The judgment as to jurisdiction handed down in the Conner case was one that Campbell had hoped for, and a week later Riel was indicted.
Campbell personally intervened to have Riel's trial site changed from Winnipeg to Regina. He did so to ensure Riel would be tried by an Anglo-Saxon jury of six, rather than by a mixed jury of twelve. In correspondence that he wrote to John A. McDonald on two separate occasions, Campbell referred to the rights of an accused in Manitoba to a mixed jury, something Riel would not be entitled to in the North-West Territories. Campbell wrote "very urgently" to Minister of Militia and Defence Adolfe Caron (law partner and brother-in-law of Riel's lawyer, Charles Fitzpatrick) to divert Riel from Winnipeg to Regina because, as he told McDonald, a trial in Manitoba would result in "a miscarriage of justice". He didn't say why, in his opinion, a trial in Manitoba would be a miscarriage of justice, but a trial in the North-West Territories would not be. However, his view, as just noted, is obvious.
The fact that Chief Justice Wallbridge subsequwntly presided over Riel's appeal was wrong and contrary to procedural justice and natural justice. As well, Wallbridge (who stated he had carefully read the trial evidence) made a blatant misstatement in his judgment that all evidence which Riel desired was called. See Chapter XX for a fuller discussion.
(c) Deprivation of Riel's Right to Full Answer and Defence
Riel was charged with high treason under the ancient 1351 Statute of Treasons passed in England. However, the make-up of the jury, the presiding magistrate and justice of the peace, and the right to "make full answer and defence by counsel" were provided for in the North-West Territories Act of 1880, a Canadian Statute.
Riel was deprived of his right to make full answer and defence. The main culprits in depriving Riel of his legal rights in this respect were his own lawyers. There was a failure on the part of Riel's lawyers to provide him with a full defence and answer based on his instructions to them and based on other matters discussed herein and in (d) below.
(i) Riel specifically instructed his lawyers that he wanted a trial "on the merits of my actions". This would have involved evidence of justification for his actions, e.g. self-defence at Duck Lake where the bloodshed was initiated by the assistant to NWMP Superintendent Crozier. This defence would have delved into the reasons which prompted the settlers to seek out Riel in Montana; into Riel's activities in the North-West Territories; and into the maladministration and neglect of the federal government. The latter course would have put Riel chief defence counsel Fitzpatrick in a most unhappy situation.The defence counsel would have had to attack the government in which his law partner and brother-in-law Adolfe Caron (the Minister of Militia in John A. McDonald's government) was a foremost player in recent events relating to the uprising in the North-Wrst. By not pursuing this defence, Fitzpatrick was saved from this embarrassment.
(ii) There was a failure on the part of Riel's lawyers to procure the attendance as witnesses of the two federal Deputy Ministers that Riel swore were material and essential to his defence, or to procure relevant documents.
(iii) There was a failure on the part of Riel's lawyers to apply for a commission to take the evidence in Montana of Dumont, Dumas, and Nault, further witnesses that Riel swore were essential and material to his defence.
(iv) There was a failure on the part of Riel's lawyers to forego the insanity plea (which they were pursuing on the instructions of mysterious "others"), a plea vehemently rejected by Riel. This plea was contrary to a full defence and answer, which he wanted, based on his direct instructions to his lawyers. Furhter failures of the part of Riel's lawyers appear in Chaper XXII "Shortcomings of Riel's Lawyers", including their antagonistic treatment of him in open court.
(v) Crown counsel and Magistrate Richardaon also contributed to the inability of Riel to make full answer and defence. At the outset, the defence made an application for an adjournment of the trial for one month because they were "not in a position to proceed with the trial at the present moment." They had not obtained the presence of any witnesses and certain key documents. Notwithstanding this situation, Crown counsel Robinson initially opposed any adjournment of the trial. After much argument, Robinson agreed to a one-week adjournment. In that one-week interval, the defence failed to obtain the attendance of the "essential and material" witnesses or to the documents referred to above. Perhaps if the one-month adjournment had been agreed to they would have done so. As well (as noted in Chapter IX) Robinson stated he opposed production of government documents, and the inspection of correspondence found in Riel's possession at Batoche, on the basis that they were "state documents". None of these items were made available to Riel or his counsel.
(vi) During the cross-examination of Charles Nolan, Riel specifically referred to making a full defence. Richardson's response was that Riel would be given an opportunity of addressing the court after the examination of the witnesses. An accused at the time was not allowed to give evidence. An address to the court, after all evidence was in, was not in itself evidence and is no part of a full defence.
(d) Unauthorized and Deficient Legal Representation
In addition to their failure to provide Riel with a "full answer and defence' as requested by him, Riel's lawyers prusued a doomed strategy unauthorized by him, and exhibited a number of serious shortcomings. These are discussed in more detail in Chapter XXII "Shortcomings of Riel's Lawyers". However, three of them are glaringly conspicuous.
(i) The doomed strategy of Riel's lawyers in pleading a defence that Riel was insane was done pursuant to the instructions of unknown "others". This strategy was contrary to Riel's instructions,was unauthorized by Riel, and was wrong. This wrong was compounded by the abandonment by Riel's lawyer of any other defence before the jury. In any event their medical witnesses, Drs. Roy and Clark,were of little help (from Riel's lawyers point of view) in proving Riel's insanity. Roy was unsatisfactory and Clark was pig-headed in ignoring the applicable law of insanity. In the latter case, Dr. Clark's evidence was supportive of the legal sanity of Riel argued by the Crown, and against that f the insanity plea argued by the defence lawyers. Not only did Riel not sanction the insanity plea by his lawyers; he vehemently rejected it. He refused "to consent to the animal life of an asylum" as he passionately stated to Magistrate Richardson in interrupting his lawyers cross-examination of Charles Nolin.
(ii) Another significant deficiency flowed from that just mentioned. By failing to provide the jury with an additional or alternative defence related to justification, the jurors were not provided with the opportunity, if they were so minded, to take measures described in the judgment of Chief Justice Dickson referred to in Section1(c) of Chapter XXII. Based on the defence evidence presented to them the jurors were conscientiously unable
to act as a safety valve in an exceptional case;
to collectively express the common sense of the community against an oppressive enforcement of the law; or
to exercise a de facto power to disregard the law if they it just to do so.
By not presenting to the jury an alternative to the defence of insanity, the prospect of one or more jurors scrupulously floowing one or more of the courses was not made available. Consequently when the jury decided that Riel was sane the potential for a hung jury or for outright acquittal, which an alternative defence may have provided, was non-existent.
(iii) The third conspicuous shortcoming of Riel's lawyers is summarized in the following section (e) "Inapplicability of the 1351 Statute of Treasons to the Riel Charges".
(e) Inapplicability of the 1351 Statute of Treasons to the Riel Charges
A third and most egregious flaw, in the defence lawyers strategy, was a failure to argue that the law under which Riel was charged (the 1351 Statute of Treasons) was the wrong statute for acts of levying war in Canada, and hence none of the charges were valid. The extensive discussion of the inapplicability of the 1351 Statute of Treasons to "levying war" outside of the Realm is discussed in Chapter XVI "Riel's Unlawful Conviction and Execution". There was not a whisper of dissent, by Riel's counsel, against the utilization of this primitive enactment from a land far away to occurences in Canada. There was no challenge to the applicability of this antique law in the North-West Territories. There was no discussion or citation of authorities to prove that the term "Realm" meant England, and not Canada, in the 1351 Statute of Treasons. There was no stand against the misleading use of the term "realm" (meaning Canada) in the Riel charges which erroneously implied that this ws the same "Realm" as that in the 1351 Statute of Treasons. There was no demand on the magistrate that he rule on the matter, no motion for dismissal of all charges for lack of proof of any alleged activities within the "Realm". Neither were these matters raised on the appeal to the Court of Queen's Bench of Manitoba or before the Privy Council. This attack on the applicability of the 1351 Statute of Treasons, successfully argued, would have seen every charge against Riel dismissed. In that event there would have been no execution.
After Riel's conviction, Prime Minister MacDonald acted in bad faith and engaged in skulduggery, with respect to the medical commission he appointed to examine Riel. Events surrounding MacDonald's duplicitous activities in this respect are discussed in Chapter XXI "Mercy Denied". MacDonald had not the slightest intention of granting mercy to Riel, notwithstanding the unanimous recommendation of the jury. Some time before the medical commission was appointed, Governor-General Lansdowne, in a letter dated October 7, 1885 to MacDonald, wrote concerning Riel:
"from our conversation ...I have no doubt that your mind is fully made up, and that you will advise that the law should take its course."
MacDonald determined that "the gone coon" as he once called Riel, would receive no mercy. His steely determination was motivated by a number of factors. These included
(i) the troubles Riel had caused him during the Red River Resistance;
(ii) the consequent incapacitating illness that MacDonald suffered for months;
(iii) the execution of Thomas Scott in 1870 by Riel's Provisional Government with respect to which MacDonald stated that Riel had "committed a cold blooded murder...which will never be forgotten by the whites...in..Ontario (notwithstanding that only a few months earlier MacDonald had stated, in effect, that under the law of nations it was "quite open" for the Red River inhabitants "to form a government ex neccessitate").
(iv) the realization that if Riel had not been convicted, Riel's actions and that of the Metis would be a condemnation of his policies, and lack of policies, towards the North-West Territories.
(v) the frenzied demands of his fellow Orangemen of Ontario; and
(vi) the fact that his supporters clamouring for Riel's execution outnumbered those opposing Riel's death.
The sometimes duplicitious, mendacious, unscrupulous and (often) bibulous MacDonald had decided that he hated Riel
"shall hang though every dog in Quebec bark in his favour".
In sentencing Riel, Magistrate Richardson had asked God to have Mercy on Riel's soul. John A. MacDonald had no mercy on Riel's body. This was so notwithstanding MacDonald's advise to Governor-General Lansdowne that the
"Northwest outbreak was a mere domestic trouble and ought not be elevated to the rank of rebellion."
He added that Riel's acts "technically amount to treason.
In the Canada Parks Museum at Batoche in Saskatchewan, there is an inscription accompanying one of the exhibits reading:
"Execution - To have given him clemency MacDonald's government would have in effect accepted responsibility for the unrest and many of the unfulfilled promises of the North_west. It was much easier to lay the blame on the shoulders of one man - Louis Riel."
In the same Batoche Museum there is a cartoon drawing in which Justice is standing with her back to John A. MacDonald. In the cartoon MacDonald says "Well Madam, Riel is gone. I hope you are quite satisfied" to which Justice responds:
"Not quite - you have hanged the EFFECT of the rebellion. Now I want to find and punish the CAUSE".
There is currently a Bill before Parliament to reverse Riel's conviction for high treason and to recognize him as a Father of Confederation and the Founder of the Province of Manitoba. In March 1999 a poll found that 65 percent of those surveyed supported Riel's exoneration. As noted throughout this study, there is overwhelming justification for the reversal of Riel's conviction. Based on the thesis set forth in this text the weightier demands of the law were overlooked and
Riel was denied justice;
Riel was denied mercy;
Riel died an unjust and unmerciful death.
Please note that the copyright of this particular piece belongs to the Publisher and author George R.D. Goulet. B.A. LL.B.(U. of M.), LL.M.(U of Toronto)
I highly recommend that you find the book and read it. Considering it is written by a lawyer there are many legal terms and can be a bit boring however, in the interest of Louis Riel and how unjustly he was executed, I would recommend that you find a copy, buy is better and read it.
mjdurocher 2000 - 2002