“People who called me an ‘Indian lover’ were not intending to pay me a compliment” - Cunliffe Barnett, founder Fetterly & Barnett, Judge of the Provincial Court of British Columbia, Class of 1966.
Cunliffe Barnett grew up on Vancouver’s west side, attending high school at Prince of Wales and anticipating a university education at the nearby University of British Columbia. However, his parents had other ideas and he enrolled in a Geology & Geophysics degree at the Massachusetts Institute of Technology. By the time he graduated from MIT in 1959, Barnett remembers realizing he “was really not wanting a career as an engineer, a scientist, or a geologist, and…began the process of applying for admission to the UBC law school.”
His start at the University of British Columbia was delayed when his wife became pregnant with their first child. To support his growing family, he worked a variety of jobs in the early 1960s, including work as a field geologist, a high school teacher, and a lumber broker.
The Barnett family returned to Vancouver and Cunliffe was able to begin studies in at the law school in 1963. He was among 6 or 7 others considered mature students, many of which also had families. In order to pay for school in time without Canada student loans, he sold his car and borrow against his mortgage to cover tuition. His parents were somewhat unsupportive of his law school education, instead desiring that he would work in the family business. However, as Cunliffe recalls “my dad came around after my first term, when he saw that I was a better student in law school than I had been at MIT.”
At law school, Cunliffe Barnett had the privilege of having his first class with Terry Ison. He also remembers quite fondly the collegiality of one professor, “JM MacIntrye…we used to call him Jimmy Mac…he socialized with some of us so-called mature students.” Contrary to school policy at the time, Mr. Barnett was also able to secure employment during his legal education. He worked a few times a week at Freeman, Freeman, Silvers & Koffman. At the firm he appreciated not only the access to great mentorship from lawyers such as Dave Freeman and Morley Koffman, but also for the access to the courthouse library and books, to which other students at the school did not have access.
When Barnett graduated from law school in 1966, he took articles with Millward & Company in Kamloops, and after articles founded his own firm in Kamloops of Fetterly & Barnett. However he grew restless and left for Prince Rupert in March of 1968. Recalling the decisions, he says “it was a wide open professional opportunity there…I didn’t know people in Prince Rupert but I had figured out that Prince Rupert was a place where I could anticipate earning an income pretty quickly and it was better than that.”
He remembers that when he arrived in town one of the first questions people who ask him was whether he was a drunk. The other thing he remembers from Prince Rupert was a case where he was warned the judge was about to do something really wrong, and Barnett ran into the court saying “Judge I’ve been asked to act for this boy, I have not had an opportunity to talk with him, I have not had an opportunity to talk with his parents, I am willing to act for him, I know nothing about this matter, I need an adjournment.” As he came to learn, the judge had already written an order raising the indigenous youth to an adult so he could be sent to prison, before he’d even had a hearing. Barnett was sure to appeal that order.
His practice in the town did quite well, but he returned to Vancouver in 1970 so his wife Mary could attend university. He returned to work at Freeman, Freeman, Silvers & Koffman but the election of Dave Barrett’s New Democrats to the legislature brought with it the political will to change all lay judges in the provinces courts to appointed judges with legal training. Mr. Barnett was convinced to apply for one of the positions on the Provincial Court because he remembers his colleague Stuart Van Mail stating of the Provincial Court “that is where the action is.”
Judge Cunliffe Barnett was appointed to the Provincial Court in Williams Lake, and sat his first day in October 1973. While he had encountered Indigenous issues as an attorney in Prince Rupert and Merritt, those issues because a regular occurrence during his time on the bench. Within a few weeks on the court, he was asked to the Cannon Lake reservation to hear the group's concerns for the thirty children which had been removed from the community and never returned. Accompanied by social worker Skip Alton, he learned that the practice of ‘scooping’ children continued in the area. Judge Barnett remembers returning to town and looking through the courthouse records for all the judicial requests made by social workers, and found “there wasn’t a single case where the social workers hadn’t got the order that they were asking for.” Judge Barnett took a stand, deciding to end this practice of unquestioned intervention, prompting many to begin insulting him was a phrase he never took to be an insult – ‘Indian lover’
Judge Barnett’s cases related to Indigenous issues are those which stand out most in his mind. He remembers the case of Francis Haines, a Chilcotin man who killed a moose, as possibly his first Aboriginal Rights case. He found Haines not guilty, a decision that was later overturned by the BC Supreme Court and the BC Court of Appeal. Despite being overruled, Judge Barnett is confident he made the right decision in the Haines case, but admits he “did come to understand that the decision was written about 10 years too soon.”
He would face another Aboriginal hunting rights case when William Alphonse killed a deer. He recalls that when trial began Crown attempted to argue that a criminal trial was not the appropriate place for this issue, to which Judge Barnett reminded crown they could issue a stay and that “Mr. Alphonse didn’t ask to be charged.” Again Justice Barnett found the accused First Nations hunter not guilty. The decision was overturned on appeal, but he recalls he received a letter from a senior judge which said “Cunliffe - don’t be too upset with my decision overruling you, my favorite lawyer says that you’re right and I’m wrong.” Cunliffe Barnett remembers that for that judge “his favorite lawyer was his daughter.”
Over the remainder of his career Judge Cunliffe Barnett continued to advocate for the serious consideration of indigenous rights and greater awareness of the issues faced by indigenous peoples. He was appointed a deputy judge for the Yukon as well as the Northwest Territories, where he served until reaching retirement age in 2011. His work as an educator has helped first nations elders, report writers such as those who prepare Gladue reports, court workers and many legal professionals. He continues to work on educating judges and advocating for greater adherence to Gladue sentencing principles. To Judge Barnett the importance of this work can not be overstated. Increasing awareness and practice is necessary, as he says “It seems to me that too many judges believe that whatever went wrong just started with the residential schools….it didn’t just start with the residential schools.”
Judge Cunliffe Barnett was interviewed in August 2017 for the Peter A Allard School of Law History Project. His advice to students and lawyers alike is to consider finishing their career as a member of the bench, because it is a truly rewarding experience.
In the interview Judge Barnett references several cases, citations available below:
R. v Haines, 1978 CarswellBC 177, 8 BCLR 211 (BC Prov Ct)
R. v Alphonse, 1988 CarswellBC 772, 3 CNLR 92 (BC Prov Ct)
Norberg v Wynrib, 1992 CarswellBC 155, 2 SCR 226
R. v Joe, 2017 YKCA 13
He also recommends multiple books, citations available here:
Candace Savage, Geography of Blood: Unearthing Memory from a Prairie Landscape (Vancouver: Greystone Books, 2012)
James Daschuk, Clearing the Plaines: Disease, Politics of Starvation, and the Loss of Aboriginal Life (Regina: University of Regina Press, 2013)
Mitchell Moise, Letter to Cody: The Longest Journey (Edmonton: Mugo Pine Press Ltd, 2017)
Listen to the full interview to hear more about Judge Barnett managing a law school with a young family, working as a rural lawyer in Prince Rupert, the cases he tried as a judge in Williams Lake, and the ongoing concern and advocacy for British Columbia’s First Nations. Part 1 of the interview includes stories from his life prior to his appointment to the judiciary while Part 2 includes stories from his time as a judge and through retirement.
Judge Barnett also spoke by phone about the case of Louisa Michel, an indigenous women charged under S64 of the summary convictions act - which enabled relocation into an alcohol treatment facility. Here is the transcript of that phone call: "The reality was that most people under that order were Aboriginal and did not receive treatment." - Judge Cunliffe Barnett
To read the full decision of Judge Barnett, please refer to R v. Michel, 1976 CarswellBC 50, 6 BCLR 1 (BC Prov Ct)