The 'trial' of Sir John A. Macdonald: Would he be guilty of war crimes today?

Last year Canada celebrated 150 years as a nation. But the controversy around the legacy of our first Prime Minister, Sir John A. Macdonald continues to build. This special episode of IDEAS puts Canada's first Prime Minister on trial for 'crimes against humanity.' Part 1 of 2-part series. Part 2 airs Friday, December 28.
Sir John Alexander Macdonald (1815-1891), Canadian statesman, and the first prime minister of the Dominion of Canada (1867-1873). Image circa 1880. (Edward Gooch/Getty Images)

**This episode originally aired April 11, 2018.

He's either a national hero or the architect of institutionalized violence. 

At a time when there are calls to remove Sir John A. Macdonald statues and rename schools bearing his name, we thought we'd bring Canada's first Prime Minister to court. 

"We realize the obvious difficulty in assessing the conduct of the first Prime Minister of Canada and viewing his conduct from the perspective informed by what we know today," said former Supreme Court Justice, Hon. Ian Binnie. "But if anyone can do it successfully, it is the two very experienced and able counsel we have today."

Prosecutor Jean Teillet specializes in Indigenous law, and is the great-grandniece of Métis leader Louis Riel.

"There were many crimes we say were committed by Sir John A. Macdonald's government against the Métis and the First Nations," said Teillet. "But today we speak only of charges known in international law as 'core crimes' — that is rape, assault with deadly intent and mass murder."

This episode is the first of a special two-part series broadcast earlier this year. It zeroes in on the first of the two charges — what's been called the "reign of terror" on the Métis from 1870 to 1872. The second episode addresses the second charge: the starvation of Indigenous people on the plains. At the end of the second episode, Justice Binnie will deliver his verdict.

The full indictment reads as follows:

First Nations and the Métis nation allege two counts against Macdonald for crimes against humanity:

  • That Macdonald knowingly maintained a reign of terror against our Métis subjects in the province of Manitoba from 1870 to 1872 that resulted in multiple assaults rapes and deaths.
  • That Macdonald knowingly withheld food from our First Nation subjects in the northwest that resulted in thousands of deaths by starvation.

"The evidence will show that he knew about the violence and he knew about the deaths and he did nothing to stop it," said Teillet. "And we say he went further. He approved it and he encouraged it."

Sir John A. Macdonald on trial: Jean Teillet leads prosecution

6 years ago
Duration 5:55
Metis lawyer Jean Teillet presents arguments against Canada's first prime minister in a simulated trial for 'crimes against humanity.'

The concept of 'crimes against humanity' was developed before Macdonald took office, and was first used in 1890 to describe a government's actions against its own people.

'Innocent until proven guilty'

Criminal defence lawyer Frank Addario stressed that his client has every right to a fair trial, and that the more unpopular the client, the more important it is to have fair representation.

"The law does not make it a crime to be unpopular. And it does not turn historical debates into proof of criminality," said Addario. "You cannot work backwards from the outcome and infer knowledge."

Sir John A. Macdonald on trial: Frank Addario leads defence

6 years ago
Duration 2:11
Criminal defence lawyer Frank Addario presents his arguments during a simulated trial that charges Canada's first prime minister of 'crimes against humanity.'

Addario does not deny that the Métis in the Red River Colony were killed and abused. Nor does he deny that thousands of Indigenous people starved on the plains. But he says those tragedies cannot be directly linked to Macdonald.

"There is no evidence he was interested in slaughter or killing," said Addario, who points out that Macdonald was considered progressive for his time by pushing against popular opinion and initiating a food aid program for Indigenous people. "The failures of the treaty food program were not the work of a genocidal maniac."

​Weighing the evidence

In assessing the evidence, Judge Binnie said it's important to keep in mind the following questions:

  • Does the prosecution clearly establish the crimes that happened?
  • If those crimes occured, who is directly responsible for them?
  • What was the chain of command between those on the ground and those in Ottawa?
  • What did Macdonald know, and when did he know it?
  • Does Macdonald's conduct reach a level of criminal responsibility beyond a reasonable doubt?

This special is based on a recording at the Isabel Bader Centre for the Performing Arts at Queen's University.

Guests in this episode:

The Honourable Ian Binnie, C.C., Q.C., is one of Canada's most respected arbitrators and advocates, the Honourable Ian Binnie served for nearly 14 years as a Justice of the Supreme Court of Canada. When he retired in 2011, he was described by The Globe and Mail as "arguably the country's premier judge" and by La Presse as "peut-être le juge le plus influent au Canada dans la dernière décennie" (perhaps the most influential judge in Canada over the last decade). During his time on the country's top court (as only the fourth modern Justice appointed directly from the bar), Ian authored more than 170 opinions, including in landmark cases involving corporate and commercial disputes, issues of contractual interpretation and torts, patent interpretation and validity, Indigenous rights, copyright and protection of trademarks, media law, punitive damages, expert evidence and many other aspects of constitutional, criminal, and administrative law.

Frank Addario leads Addario Law Group's criminal, quasi-criminal, white-collar criminal defence and investigations practice. He is an experienced trial and appellate lawyer, regularly appearing at all levels of court in Ontario and at the Supreme Court of Canada. In 2016, he was awarded the G. Arthur Martin Criminal Justice Medal for his lifelong commitment to the criminal law. He is a vice president of the Canadian Civil Liberties Association. He is a past president of the Criminal Lawyers' Association.

Jean Teillet is senior counsel with Pape Salter Teillet LLP and specializes in Indigenous rights law. Teillet has long been engaged in negotiations and litigation with provincial and federal governments concerning Métis and First Nation land rights, harvesting rights, commercial harvesting and self-government. She has served as counsel before all levels of court, including lead counsel for the landmark case R. v. Powley in which the Supreme Court of Canada affirmed constitutional protection of Métis harvesting rights. Teillet was a founder of the Métis Nation of Ontario and the National Aboriginal Moot. She sits on the Canadian Judicial Council Chairperson's Advisory Group and the Indigenous Bar Association Ethics Committee. She is vice chair of Indspire (formerly the National Aboriginal Achievement Foundation) and past-vice-president and treasurer of the Indigenous Bar Association of Canada.

Patrice Dutil is a professor of politics and administration at Ryerson University. He has written a number of books on Canada's early prime ministers, including Prime Ministerial Power in Canada: Its Origins under Macdonald, Laurier and Borden (2017). He was instrumental in providing the defence with research and provides expert testimony for both episodes of The Trial of Sir John A. Macdonald.

Further reading:

This series was produced by Nicola Luksic and made possible with thanks to Queen's University The video evidence for this trial was produced by Bellows Media. The words of John A. Macdonald were narrated by John Gilbert. The words of Louis Riel were narrated by John D. Huston. Part 2 airs Thursday, April 12.