Mt Forster, Forster Creek, Forster Pass
Even today it is assumed that Sylvester is guilty of Forster’s death. Legally speaking, he is not.
This is the second of two posts about Harold Ernest Forster (the first can be found here), with this post going into detail about the circumstances of his death. For reasons that will hopefully become clear, this post does not focus so much on Forster, however, as it does the British Columbia justice system.
I was very hesitant to get into this history. Forster died violently, and the man implicated in his death is a young Indigenous man, who was himself hanged. Once I started to look at this incident with a critical eye, questions proliferated, and the more I dug in the more questions I had. Those questions turned into concerns about how the justice system operated at the time, and how the legal proceedings have impacted the way in which the story of Forster’s death is understood.
As an important note, I have had to rely primarily on newspaper reports in recounting the details of this incident. Case files do exist at BC Archives in Victoria,1 but I am stubbornly refusing to pay for access to documents when I’m not being paid to do research with said documents. Anyways, this discussion might change with official documentation.
With that out of the way, and with warnings that this will go in depth on a difficult subject matter, here we go.
The Story in Brief
To briefly summarize events: on 26 September 1940, twenty-one year old Frank Sylvester (on the 1921 census Frank Celesta),2 a young man of the Secwepemc (Shuswap) First Nation, shot at Forster inflicting unknown wounds, and shot retiree John Lundy, who was living with Forster, in the head (we’ll go into more detail about the incident itself later).
Just after midnight on 28 September, Sylvester “called out of his house” his friend, William Stevens, to say that he had killed two men. Stevens didn’t believe Sylvester, so the two went to Firlands where they found Lundy’s body in the kitchen. Although the two went into the house they didn’t see Forster. Before returning to the Shuswap reserve, Sylvester started a fire that burned the house down.3 Sylvester’s brother, Pierre (or Peter), later testified that Frank had told him he had killed two men and showed him a rifle.
Sylvester was arrested on a charge of drunkenness late at night on 2 October 1940 in Cranbrook, having left the reserve earlier that day saying that he was going to enlist (in the Second World War).4 Forster’s car, which Sylvester had taken following the incident on September 26, was found late on October 3, about forty miles north of Cranbrook, with its license plates stripped off.5 Also on October 3, Forster’s house at Firlands was found burned down, with the ashes being cold when Provincial Police began their investigation. These reports state that the fire occurred “within the past two or three days.”6
The day after, on October 4, Frank Sylvester was charged with the murders of both men. A preliminary hearing against Sylvester was held on October 11,7 and a trial begun on October 19.8 Sylvester was found guilty and sentenced to hang, with the sentence being carried out on 24 January 1941.9
The Dead and the Accused
Setting aside for the moment the astonishing speed in which the British Columbia judicial system convicted a man to death (we will get to this), it’s worthwhile to take a moment to examine how the individuals involved in the incident were treated in the press and, subsequently, in public opinion.
In the earliest newspaper reports following their deaths, very little could be said about Forster and even less about Lundy. They were “old-time residents,” but even Forster’s name is frequently misspelled – as Harold D. Forster,10 or Harold J. Forester – and his term in the provincial legislature is misidentified as being from 1911 until 1913 (it was 1912-1916).11 Of John Lundy even less is said, beyond that he was a “close friend” of Forster who, “went to live with him some time ago.”12
These descriptions are augmented in reports the following day summarising that “Harold J. Forster” [sic] was a “wealthy English settler,” whose house was a “palatial affair, with 10 bedrooms and a library in addition to other living quarters.”13 Subsequent articles tend to emphasize the value and size of the house at Firlands.14
It is in this initial press cycle that we get a single hint about Forster and Lundy’s living situation, namely that Forster, “had closed off most of the house.”15 We do not learn more until a much (much) later summation that states that, “By this time Harold Forster was an alcoholic. He and John Lundy lived and drank together, rarely leaving the kitchen, choosing to sleep there as well.”16
We know even less about the life of Frank Sylvester. Newspaper reports may or may not mention that he lived on the Shuswap reserve, and it is learned during the trial that he had an older brother, Pierre (Peter on the 1921 census).17 The focus of these newspaper reports are that he was an “Indian” who had “slay[ed] two white men.”18 We do learn, in reports of his being hanged, that he owned a horse.19
There is nothing else reported about Frank or his family. To add a little further detail, Frank was the youngest of at least three children with an older sister (identified as “Morass” on the 1921 census) in addition his older brother, Pierre/Peter. His parents were John and Isabel who, in 1921, owned a farm on the reserve.20
Frank and his siblings were all of an age to have been sent to St Eugene Residential School in Cranbrook, but I was unable to find school records to confirm this. If he did attend the school (which is very likely), Frank would have been been about ten years old in 1930 when the school at Cranbrook was concluded to be “a veritable tubercular institution,” with the assistant Indian commissioner in BC concluding that, “The school was in the worst condition of any he had seen in his twenty-three years of working with First Nations people.”21
The Resulting Narrative
Perhaps it is unsurprising, with so ambiguous of characters, that subsequent accounts narrate the story of Forster and Lundy’s deaths as something out of a Western. An Indian kills two white men and burns down an expensive building, and that is all that anyone needs to know.
At least one newspaper writer, W.W. Bride, took this narrative to extremes in a piece published in the Montreal Standard in December 1940 titled “When Redman Went Berserk.”22 According to Bride’s fictionalized and sensationalist account (he includes quotations of dialogue), this was “one of the most cold-blooded and cruel murders in the history of crime.” The tone of Bride’s story can perhaps best the summarized by his closing paragraph, in which he fabricates a scene from the trial:
Bride’s gleeful exaggeration of a “villain” makes his story incredibly difficult to read, but it does capture something of how the incident was viewed and treated by the non-Indigenous majority, and not just in the Press. Once Sylvester had been arrested, investigative and prosecutorial efforts do not presume his innocence so much as go through the steps to confirm his guilt.
To understand more, let’s go back to the trial against Sylvester – the one in which he was sentenced to death just fifteen days after being charged – and break down the sequence of events.
Breakdown of the Judicial System
The Preliminary Hearing
Sylvester was charged with murder on 4 October 1940, and a preliminary hearing was held a week later on October 11. The purpose of a preliminary hearing is for the court to decide whether there is sufficient evidence for conviction in a trial.
The charges against Sylvester at the preliminary hearing were for “slaying two white men,”23 ie. killing John Lundy and Harold Forster. These charges were supported by the testimony of Sylvester’s friend, William Stevens, and his brother, Pierre Sylvester, with both of whom Frank had discussed his actions. A police constable also read out two statements that Sylvester made while in custody. The judge decided that this was enough evidence to move forward with a trial against Sylvester for the murders of both Forster and Lundy.
The Coroner’s Inquest
What the judge at the preliminary hearing did not consider, because he did not have it, were the results of the coroner’s inquest. A coroner’s inquest is an informal, publicly held court proceeding, with a jury of five to seven people, held to review the circumstances and facts of a death. The inquest is presided over by the coroner with a goal to be “fact-finding, not fault finding.”24
The facts from an inquest might be informative in preliminary court proceedings, but the inquest into the deaths of Forster and Lundy was held on Friday, 11 October 1940, “at the same time,” as the preliminary hearing, with the hearing being held in Cranbrook, and the inquest in Invermere.25 There were no fax machines, so although individuals at the two proceedings could have phoned each other, the hearing judge did not therefore have the findings of the inquest. The difference in locations also meant that witnesses testifying at one proceeding were unable to testify at the other (ie. the doctor heard by the jury at the coroner’s inquest would not have been available to testify at the preliminary hearing, nor would testimony from the police constables investigating the case and testifying at the hearing have been heard at the inquest).
At the inquest into Forster and Lundy’s deaths, the coroner and jury heard testimony from Dr A Naismith of Kamloops who, “had examined the bones found in the ruins, and found the one skeleton to be that of a man six feet tall and of a build similar to the description of Forster. A charred torso found in the basement ruins showed a spinal curvature, from which Lundy had suffered.”26
The formal verdict of the inquest was that Forster and Lundy had come to their deaths, “by shooting at the hand of a person or persons unknown.”27 At first glance, this seems straightforward enough. Lundy and Forster were shot by an unknown person, and the inquest leaves it is up to the courts to determine who that person was.
But a problem emerges as further pieces of documentation produced by the coroner don’t match this verdict.28 On the death certificates of both Lundy and Forster, filled out by the coroner and dated the same day as the inquest, the cause of death for both men is “Gunshot Wound.” Underneath this the “Manner of injury (How sustained),” is described as “Shot by Indian.” This contradicts the coroner’s verdict that the two died of shooting by persons unknown – a person unknown, by definition, cannot be described by a racial qualifier: they are unknown.
Further information on the death certificates raises more questions. Under the heading, “Nature of Injury”, for example, Lundy’s injury is summarized as a “rifle bullet through head,” presumably evidenced by some physical damage to his skull (I say “presumably” to give the benefit of the doubt – no mention of this is made in newspaper reports).
On Forster’s certificate, however, things are more confusing, with the injury described as “Unaccountable. House fired while deceased therein.” It is left unexplained how Forster’s cause of death is listed as being by gunshot wound even though the coroner is unable to describe where he had been shot.
A later account summarising the report from the coroner’s inquest concludes, “that Harold had managed to get himself to another part of the house [after he was shot] and it could be that the fire killed him where the bullet hadn’t. We’ll never know, for forensics at that time were crude.”29
Forensics may have been crude, but the veneer of the coroner’s inquest being interested in facts is undermined by this contradictory documentation. The inquest was somehow able to conclude simultaneously that both men died by being shot by an unknown person, that they had both been shot by an Indian, and that there was no physical evidence that Forster had been shot at all.
Unfortunately this documentation is only one step in a judicial system that proceeded to assume the guilt, rather than the innocence, of Frank Sylvester.
Probably as a result of the confusion at the coroners’ inquest, when the trial began against Sylvester the following Saturday, on 19 October 1940, the case against him for Forster’s death had been dropped. Proceedings continued only for the death of Lundy.
Again, the scheduling of the trial seems very fast, being only a week following the preliminary hearing. Again, we’ll get back to this. There is no mention in newspaper reports of Sylvester having a lawyer present at the preliminary hearing, but even if he had, that lawyer would still have had only a week to review the coroner’s inquest and craft a defense.
The nature of this defense appears to have been a formality at best. An article from the Canadian Press, as published in The Province, summarizes it such: “Counsel for the defense, Alan Graham, asked the jury if it believed a man having committed such a crime would so openly blaze a trail of guilt. He added that the effect of alcohol upon an Indian was recognized as producing madness by the legislation which prohibited its sale.”30
Let’s break that down. The jury at the trial would have been composed of white men, with a high likelihood that at least some of them would have absolutely believed that Indigenous people were less intelligent than themselves and may indeed have left behind such evidence of guilt. The argument that an accused cannot be guilty because there is too much evidence against them is unlikely to ever be convincing, but particularly so in cases where the jury is predisposed to believe that the accused was, well, that stupid.
As to the second part of the defense, that alcohol “produced madness”, this may have been more effective at the time. It was a widespread myth, one that continues today, that Indigenous people are uniquely unable to tolerate alcohol. The stereotype has been useful both to governments and to members of the public to support the argument that special laws were required to curb the “savage” tendencies of Indigenous people. It is also substantiated by the practice of Indigenous people drinking alcohol rapidly to avoid being arrested or fined for drinking. That Indigenous people are any more susceptible to “madness” from alcohol than anyone else is untrue,31 but the argument may have held sway.
But even had the jury believed this defense of a special alcohol induced “madness”, the judge in the case explicitly dismisses that defense as being relevant. When charging the jury before they entered deliberations, the judge instructed them, “that insufficient evidence of drunkenness had been produced to make such a condition an extenuating circumstance.”32 In other words, it didn’t matter if Sylvester had been drinking: the judge instructed the jury to ignore it.
It was no surprise to anyone that Sylvester was found guilty, and immediately following the verdict he was sentenced to be hanged. As the trial judge had instructed the jury before they began deliberations, “I see no difficulty in the case myself.”33
Some Difficulties in the Case
I am neither a legal historian nor a lawyer, and official documentation (trial records/coroner’s inquest) would be helpful here, but even at a superficial level there are questions to be asked about how the judicial system treated Frank Sylvester. To be clear, I’m not concerned with whether Sylvester broke the law: my point is that, from the moment Sylvester was arrested, the system was stacked against him. He didn’t stand a chance.
As a good place to start, it is completely inappropriate that a trial judge would see fit to instruct the jury in a murder trial that he “see[s] no difficulty in the case myself.” As I’ve read into other cases in British Columbia I’ve come across the phrase, “misdirection by trial judge.” That seems an accurate description – if the jury is all but instructed by the judge to return a guilty verdict, then there is no presumption of innocence, and that is misdirection.
But there seems to be more at question here than the judge’s actions. So, when I claim that there are difficulties in Sylvester’s case, let’s lay them out.
(1) The Time Frame
I keep harping on this, that the timeline between Sylvester being charged and his being brought to trial and convicted is fast: just fifteen days. At first I worried that I was overreacting. This is 1940, after all, so perhaps the justice system just moved more quickly then. So I decided to compare Sylvester’s case with others in British Columbia from around the same time in which the death penalty was enforced. Here’s a summation:
That’s a lot of numbers but, when compared to other cases, yes, Sylvester’s was rushed. His is the only one of these cases in which the preliminary hearing and the coroner’s inquest are held on the same day: in all others the coroner’s inquest was held first. The period between the preliminary hearing and the trial in these other cases might also stretch anywhere between thirteen and sixty-four days (put a pin in that thirteen days). There were just eight days in Sylvester’s case.
Now, an argument might be made that the rapid turnaround between Sylvester’s preliminary hearing and his trial are the result of the nature of the judicial system itself. Trials in British Columbia occur periodically at what are called Assize Courts, and dates for the Assize Court sitting are set in advance, with cases being scheduled into that time frame as they emerge.
The Fall Assizes in Cranbrook in 1940 had been scheduled to open on October 15, and so Sylvester’s case was scheduled in, on Saturday, October 19. It is unclear if Assize Courts always operated on a Saturday or whether this is an anomaly but, in any case, it makes sense that a person’s trial should be held at the first Assize Court following their preliminary hearing.
But in Sylvester’s case, this practice of holding the trial at the first available Assizes offers less a logical explanation for his rapid trial than a reason for the desperate pace of the proceedings to begin with. The preliminary hearing against Sylvester could have waited until after the coroner’s inquest, but instead the hearing was smashed in on the same day, which also happened to be the Friday immediately before the Assize Court opened. Why the rush?
As one explanation, if the Cranbrook court were scheduled to be busy with the Fall Assizes for the following week, and if the preliminary hearing were not held before the Assizes opened, then the hearing would have had to wait until after the Assizes were complete. Sylvester’s trial would then also have to be scheduled for a later court (perhaps the Spring Assizes).
Such a delay should not have been a problem, and may even have benefited the case. Had the judge at the preliminary hearing had the results of the coroner’s inquest in hand, and perhaps heard testimony from the medical official who examined the scene, perhaps he may have concluded from the start that the trial against Sylvester should only proceed for the death of Lundy. This may have quelled the assumption, still present today, that Sylvester was found guilty of the deaths of both men. Perhaps the extra time could have also allowed for a more thorough examination as to how Forster died, or maybe other issues (discussed below) could have been examined by the defense.
Besides, what does it matter whether a trial is held in the next Assize Court or the one after it – justice need not be rushed.
Unless it does. Which brings forward the second problem with the case:
(2) Justice or Fear of Justice?
It’s very difficult to suppose the motivations of something as leviathan as “the justice system,” but historical trends can help shed light on trends. For example, this case reminded me of another, back in the mid 1880s, when a group of settlers came to believe that two young Indigenous men were responsible for the deaths of two white prospectors near present day Brisco. The case was investigated in 1885 and dropped due to lack of evidence, but two years later the two Indigenous men were arrested again by a group of white settlers at Wild Horse Creek. Members of the local Ktunaxa nation were upset at the men being taken into (what they viewed) as unjust custody, and they broke the young men out of jail.
To say that white settlers reacted strongly to this jail break is an understatement. Panic about an “uprising” spread through the region, and settlers were not pacified until a contingent of North West Mounted Police was sent into the area (hence the creation of Fort Steele). A more thorough discussion of these events can be found in my post on Body/Dead Man’s Creek, however, for the moment let’s focus on the attitudes of white settlers in reaction to the initial (1885) investigation, when charges against the Indigenous men were dropped for lack of evidence.
In criticism of the charges being dropped, an editor in The Victoria Daily Times makes the argument that the safety of white settlers was paramount, asserting that a “failure of justice” would have a “bad effect upon the Indian mind.” The editor demands, “that a life for a life is the only safe rule to follow,” and that, “a wholesome fear of British justice is the only deterrent worth anything on the Indian character; and so soon as they lose that they are ready to pillage and murder white men anywhere for a few paltry dollars.”34
In other words, if Indigenous people weren’t made to fear “British justice”, then they would “pillage and murder” for any reason at all. The “failure of justice” referred to in this article, then, refers to the decision by investigators to dismiss the charges because there wasn’t enough evidence. According to the Times the concern of the investigators should not have been about guilt or innocence, but rather on the “bad effect upon the Indian mind,” if the two Indigenous men were not killed. The most important goal of “justice”, in cases against Indigenous people, was to instill a “wholesome fear” of the justice system.
Flash forward fifty-five years, to the deaths of Forster and Lundy: two “slayed” white men and a massive “palatial” house burned to the ground. There seemed to be similarities. I couldn’t help but wonder: how much was the case against Frank Sylvester for justice, and how much to instill this fear of justice?
But the case against Sylvester was decades later, and newspaper reports of the Sylvester case are too rushed to give evidence that such attitudes remained. I needed more evidence, and then I stumbled across another case.
A Sidestep: The George Brothers
There is another case in the years immediately preceding Forster and Lundy’s deaths resulting in two Indigenous men being hanged for the deaths of two white men. Two brothers, Eneas and Richardson George, of the Nlaka’pamux First Nation living on the Nooaitch Grass 9 Reserve near Merritt, were both hanged in 1936, following three trials and three appeals.
This case is complicated, and there is a lot of detail that we don’t have time to go into, but, as a brief summary, two police constables arrived at the Reserve just before midnight to arrest one of the brothers for assaulting his wife. In going to carry out this arrest, one of the constables is accused of shooting one of the George’s other brothers (Joseph), unprovoked, and, in anger thinking that their brother had been killed (he was not), the George brothers then killed the two constables.
Lawyers for the brothers later argued in appeal that they acted in self-defense and, as there had been no premeditation, that this was a case of manslaughter as opposed to murder. There are many (many) other details (one trial judge instructed the jury that premeditation “might be a matter of half a second”35 – I’ll include links at the bottom), but our interest is in the justice system more generally.
At first the George case seemed set to follow through in a similar manner as the Sylvester case. Referring back to the table above, this is the case that had the second shortest period of time between the preliminary hearing and the trial – thirteen days. It also has the second shortest period of time, after Sylvester’s, between when the crime was committed and the death sentence handed down (39 compared to 23 days).
But the George brothers had a strong defense council who went on to appeal three times and, in the course of these appeals, the death sentence for a third brother, Alex, was commuted to life in prison.
These extended legal proceedings give insight into the B.C. judicial system. In November 1936 there was a last minute attempt to reprieve the two George brothers from being hanged, a reprieve that was endorsed by two judges from the BC Court of Appeal as well as eight members of the BC Legislature. In a case in which two white police constables ended up dead, that is an astonishing amount of support.
In response to this advocacy, the BC Attorney General, Gordon M Sloan, expresses dismay and confusion that anyone would not want the two men hanged. Keeping in mind that the Attorney General heads the government department responsible for oversight of the judicial system, Sloan reasoned in a speech before the BC Legislature that questions of self-defense or premeditation were irrelevant. Instead, he argues, “There are two issues transcending in importance in the George case. The first is the question of maintaining law and order upon Indian reserves. In the other, it is my considered view that the criminal must be taught that the killing of a policeman while engaged in carrying out his duty must inevitably be followed by his own death.”36
Let’s break that down. This statement is, first and foremost, an argument for deterrence. In the justice system, deterrence is the idea that a person can be discouraged from committing a crime by instilling fear of the consequences (ie. fear of justice). The principal is unconcerned with the individual(s) currently accused, but rather aims to discourage (deter) similar actions by others in the future by strongly punishing the accused in the present.
The latter part of the statement, that the criminal “must be taught” that killing a police officer, “must inevitably be followed by his own death”, is a clear example of deterrence: if a person kills a police officer, that person dies, regardless of any extenuating circumstances. The fear of death should thereafter prevent (deter) anyone else from killing a police officer to begin with. (It should be noted that deterrence is better in theory than in practice: if capital punishment worked to deter crime, then public hangings should have completely eliminated all crime in Britain. It didn’t.)
If we view the first part of Sloan’s statement, the importance of “maintaining law and order on reserves” through the lens of deterrence, things get a bit more complicated. Note that Sloan does not preface this statement with it being his opinion: he seems to assume that people would prioritize this notion of “law and order upon reserves” above the two men being put to death, regardless of their defense. Note also that Sloan is using this argument specifically to rationalise the deaths of these men: a sentence of manslaughter would still see both living their lives in prison, which is still a form of deterrence.
So Sloan is specifically arguing for their deaths, but what exactly does he mean by the extremely vague phrase of “maintaining law and order on reserves”? If he were referring to deterring the killing of police officers, there would be no reason for the second part of his statement, so the message he is advocating must be broader. If he were concerned with “law and order” on reserves in a general sense, he might be concerned with how the system of enacting such “law and order” in this case resulted in the severe injury of an Indigenous man (Joseph) and the deaths of two white constables. But he’s not.
To best understand this argument, we need to take a step back. In fact, let’s step back all the way to 1885, and the aforementioned incident that precipitated the creation of Fort Steele. Recall in 1885 the assertion that, “a wholesome fear of British justice is the only deterrent worth anything on the Indian character,” and that without such fear of the justice system Indigenous people “are ready to pillage and murder white men anywhere for a few paltry dollars.” As argued in 1885, “a life for a life is the only safe rule to follow.”37
If we read Sloan’s statement for “law and order” through this 1885 understanding then it begins to make sense. Sloan represented a popular view, one with deep roots in British Columbia settler society, that regarded the death penalty as the only safe deterrent to scare Indigenous people on reserves from misbehaving.
In 1885, the settler population saw it as a “failure of justice” to prioritize a lack of evidence over instilling this fear of justice. In 1936, Sloan makes it plain instead that he prioritizes fear of justice over evidence; he saw provocation or self defense as irrelevant. His phrase “maintaining law and order upon reserves” therefore taps into the same fear of Indigenous misbehaviour that saw settlers demand a police contingent be sent into Wild Horse in 1887. In this settler view, the only way to ensure law and order on reserves was for Indigenous people to fear the justice system (deterrence) and, as in 1885, “a life for a life [was] the only safe rule to follow.”
How does this effect how we think about Sylvester’s trial?
If, in 1885, at least some settlers in B.C. prioritised instilling a fear of justice over evidence of guilt and, in 1936, the Attorney General’s office in B.C. still gave priority to deterrence above a plausible defense, then it seems safe to conclude that such attitudes were still present when Sylvester was tried in 1940.
In fact, these attitudes might begin to explain why the proceedings against Sylvester happened so fast to begin with. It seems rather too coincidental that the most rapid trials in B.C. from the time, resulting in the death penalty, were against Indigenous men (in the third fastest trial, the accused was a Black man). It is only because the George brothers successfully launched appeals that they weren’t so quickly put to death.
Meanwhile, in the Windermere Valley, it is unlikely that the urgency of the case against Sylvester was even questioned. Back in 1887, settlers wanted NWMP officers to be sent to Wild Horse in order to restore the Ktunaxa “to their former condition of quietude.”38 It is not hard to imagine that these priorities remained in 1940. So when the prosecutors in the Sylvester case rushed to proceed with the trial, any trial, even after physical evidence was found lacking to prosecute Sylvester for Forster’s death, and even when it made more sense to wait until a later Assize Court, most would not have questioned the rush to proceed. The faster justice was enacted, the faster the matter could be set to rest and things could go back to “normal”. Besides, if Sylvester were guilty, why delay?
Which raises a third problem with the case:
(3) Sylvester: Guilty When Charged
It is considered a key feature of the justice system that an accused is innocent until proven guilty. In the case against Sylvester, however, from the moment that charges against him are announced, his guilt is assumed: not only in public forums (newspapers), but in official proceedings as well.
We’ve touched on evidence for such a presumption of guilt. The simultaneous nature of the coroner’s inquest and the preliminary hearing, for example, very much suggest that the inquest was a formality – a box to be checked. But holding both proceedings at the same time had deeper consequences, even if participants may not have been consciously aware of them.
To start, it is impossible that those participating in the coroner’s inquest were unaware that they were making decisions regarding the facts of a case in which an “Indian” was that same day being tried at a preliminary hearing. In this context, it makes sense to conclude that Forster and Lundy were “shot by Indian”, even though guilt had not yet been proven. After all: everyone presumed Sylvester to be guilty.
These presumptions might even continue to feed back on themselves. Even had members of the trial jury assumed Sylvester’s innocence to begin with, suppose that they were presented with Lundy’s official death certificate, implicating an Indian as causing his death. Combine that official documentation with the judge’s instructions to the jury, and a guilty verdict is not only probable but inevitable.
In this context, Forster’s death certificate can be looked at as evidence for this presumption of guilt. Even though there was no physical evidence of Forster having been shot his death certificate includes the phrase “shot by Indian”, and even today it is assumed that Sylvester is guilty of Forster’s death. Legally speaking, he is not. His death certificate shows the consequences of the rushed proceedings. Had the coroner’s inquest been held first, without its participants knowing that a preliminary hearing was being held against Sylvester, perhaps the conclusions on the death certificate would have better recognized the lack of evidence.
Of course this is all semantics and quibbles about procedure. Sylvester was still tried and found guilty for Lundy’s murder, and it is incredibly unlikely that there would have been a different result. The two George brothers, who had self-defense on their side, were still found guilty and hanged.
But let’s suppose, for a moment, that there had been more time, and that Sylvester had managed to rally a stronger defense. A stronger defense may have started to ask questions, and that may have influenced how the entire story was (and is) presented. It may have changed the narrative from one of victims and villain to one that is slightly more complicated.
Some Unanswered Questions
Thus far this discussion has focused almost entirely on the manner in which this case was processed through the justice system. The swift and decisive nature of the trial, however, and the lack of any critical insight by either the press or the defense council, leave some unanswered questions about the nature of the incident. So it’s time to jump into the weeds for the speculative part of this discussion, and ask some questions about the crime itself.
(1) What was Sylvester doing at Firlands to begin with?
Sylvester lit the fire that destroyed Firlands on September 29, and the ruins were not discovered until October 3. So, if Firlands was so remote that the fire went undiscovered for days, then what was Frank Sylvester doing there to begin with?
Newspaper accounts tend to gloss right over this question, with the best explanation being that he “stopped at the Forster home”, implying that he was in the area already,39 and suggesting that he stumbled upon Firlands by accident or happenstance.
But it’s rather unlikely that a twenty-one year old Indigenous person just happened to stop by for a visit with two elderly white men. In one of the statements Sylvester gave to police, he admitted that he had already been drinking when he arrived, and there’s no mention of another form of transportation, so presumably he walked. So, according to the narrative implied in newspaper accounts, an already intoxicated Sylvester accidentally stumbled across remote Firlands, on foot, and decided that this was a good time for a friendly (alcohol-free) visit with two elderly alcoholics.
Because, legally speaking, Sylvester’s visit to Firlands should have been alcohol free, and none of the newspapers suggest any differently. According to the Dominion Legislation, the Indian Act, it was a felony to sell or give alcohol to Indigenous people from 1884-1985. Anyone who “sells, barters, supplies or gives to any Indian… any intoxicant… shall, on summary conviction… be liable to imprisonment for a term not exceeding six months and not less than one month, with or without hard labour, or to a penalty not exceeding three hundred dollars and not less than fifty dollars with costs of prosecution.”40
Newspaper accounts of the trial again ignore the implications of this, and even with the benefit of hindsight there is conflicting information. In the earliest story we have, from Sylvester’s friend William, Sylvester “and those two guys” had been drinking.41 Sylvester went on to give two statements to the constable in Cranbrook, in both of which he, “admitted he had been drinking when he stopped at the Forster home on September 26 and asked for a drink. In the first statement he said Lundy gave him a drink and then demanded payment, but in the second statement, made October 9 after he had been charged with the aged man’s murder, he said his request was refused.”42
So which is it? Was Sylvester drinking with Lundy and Forster, drinking with them and then being told he had to pay for those drinks, or being refused a drink altogether? The first two scenarios suggest an explanation for why Sylvester was at Firlands to begin with: he was there with an expectation of finding alcohol. Furthermore, if he expected to be supplied with alcohol at Firlands, not only were Forster and Lundy committing a felony, but the implication is that Firlands was a known place for getting booze. Why go there without some certainty of obtaining what one was looking for?
It is interesting, then, that the scenarios that make the most sense for explaining Sylvester’s presence at Firlands are dismissed in the final, accepted version of events. The story goes out of its way to shield Forster and Lundy from any implication of wrongdoing, progressing from a felony by both Forster and Lundy, to a felony by Lundy, to completely innocent behavior on the part of the old men.
At the same time, Sylvester is painted in an increasingly sinister light. In much later accounts that try to fill in this missing piece of the narrative, Sylvester is in one instance identified as “an intruder,”43 and in another he was apparently on a hunting excursion when he “stopped in at the isolated mansion and shot its two occupants.”44
It’s splitting hairs, but even as the public came to understand that Forster and Lundy’s deaths were caused by an Indigenous man who acted violently because he wanted a drink, they did not consider that alcohol might be the reason he was at Firlands to begin with, and that the Firlands residents may also have been acting illegally.
Neither the judicial court or the court of public opinion seem to care much that the story shifts. A defense attorney might follow up on the implications, and perhaps drill down as to whether Sylvester had good reason to expect that he would be given alcohol at Firlands. Why would Sylvester walk there if he didn’t expect to get what he was looking for? Perhaps other Indigenous persons had obtained alcohol at Firlands in the past. Perhaps acquiring alcohol at Firlands was, in fact, not an anomaly, but a trend. And perhaps, if other Indigenous people had procured alcohol from Forster and Lundy, they might be called on to testify as to their experience in dealing with the two Firlands residents.
Which leads us to a second question:
(2) Even if Sylvester had been drinking, why did he shoot at Lundy and Forster?
It’s impossible to say without trial transcripts how the topic of motive was treated at the actual trial but, as we’ve already seen, the accepted reason presented for Sylvester’s actions is that he wanted alcohol, he was refused, and so he acted violently. This is an explanation, but it is unsatisfying in fully accounting for the events leading up to the crime.
From what is reported about the trial, after either drinking or being refused a drink at Firlands, Sylvester left the house, “but returned later and shot through the kitchen window at Lundy, striking him in the head. Then he shot and wounded Forster in the shoulder. Forster disappeared into another part of the house and he [Sylvester] did not see him again. The Indian then entered the house, the [second] statement said, and after drinking wine and beer, took the keys of Forster’s car and drove away in it.”45
Why Sylvester left Firlands only to return again is unexplained. We don’t know how long Sylvester was at Firlands before he left. We don’t know how long Sylvester was gone, or where he went to before returning again. We don’t know when he came into possession of a gun – was he carrying it the whole time, or did he go and retrieve it?
And Sylvester clearly did not return to Firlands to ask for more alcohol – he returned and shot through the window. There is an argument to be made that Sylvester’s actions were prompted by anger that the Firlands’ residents had refused him alcohol to begin with, but Sylvester was Indigenous – being refused alcohol was unlikely to be anything new or cause for a murderous rage.
However if Sylvester “and those two guys” had already been drinking, or if Sylvester had already been supplied with alcohol, only for Lundy to demand payment after the fact, then there are details to the ensuing incident that the court does not address (or, at least, that newspaper accounts about the court proceedings do not address). We will likely never know what happened between Sylvester and the two white men that prompted Sylvester’s departure, and his subsequent return with a gun, but something did happen. There is no question that Sylvester committed a crime, but it seems incredibly unlikely that his actions were unprovoked.
All of this makes me very curious what testimony from other Indigenous people might have revealed about any dealings that they had with Forster and Lundy.
There is no satisfying ending to this discussion. Sylvester was hanged for Lundy’s murder, and the sensation of there having been “a gruesome double murder” at Firlands soon appears in newspaper features either reporting the sale of the property, or drumming up an interest for bids.46
What can be stated is that the rush of the prosecution against Sylvester left confusion in its wake, and details of the story were glossed over to better fit a narrative of justice being served. The rush of the trial left plenty of room for assumptions to be made.
The story is also neatened up and simplified over time. It is often reported that Sylvester shot both Forster and Lundy even though, as we have seen, despite the record of Forster’s death certificate, there was no physical evidence of Forster being shot. It is further stated, in an article just five years following the incident, that, “Examination of the rubble … turned up enough evidence to warrant the Indian’s arrest.”47 Again, a closer look proves differently – there is no indication that any physical evidence from the rubble pointed towards Sylvester’s guilt, with the case instead being built almost entirely on witness testimony.
Even setting aside these factual errors, there is much more to this story still unexamined. We don’t have any perspective of events from Sylvester’s family or other Indigenous people, and we don’t have testimony about what Forster and Lundy were doing at Firlands to begin with – their actions are, quite literally, whitewashed. We also don’t have full testimony about events from Sylvester himself.
As I said at the top, this case isn’t an easy subject matter, and it is made no easier by the manner in which it is treated by the courts and by the media. From the moment that Sylvester is accused of killing Lundy and Forster, both the papers and the justice system treat the case as a fait accompli. The resulting rush to officially convict Sylvester, just fifteen days following his arrest, has meant that the story of Forster and Lundy’s deaths has never been critically examined.
At one point while writing this post, I found myself looking up the definition of “lynching” and the history of lynching in Canada. As a reminder, lynching is the killing of someone for an alleged offense without a legal trial. According to official records, there has only been one lynching in Canada – that of a young Aboriginal boy (14 years old) near Abbotsford in 1885.
Hold a trial and it’s not a lynching. But what if a trial serves only to tick the boxes and give the appearance of justice? What if proceedings are so rushed as to cause confusion, if the defense counsel of the accused doesn’t really raise a defense, if guilt is presumed from the start, and if the trial judge all but instructs the jury to return a guilty verdict?
There are meant to be checks and balances within the justice system – appeals, for example – to counteract these forces, to make the system “fair.” But if the system is targeted towards instilling a fear of justice rather than justice itself, with instructions to that effect coming from the very top (the Attorney General), then the system cannot be impartial in assigning guilt. If the aim of the justice system is to swiftly impose fear rather than to thoughtfully uphold societal rules, then who is the justice system working for? How much does it matter if the justice system prioritizes instilling fear on reserves above investigating and punishing offenders for the crimes actually committed while taking into account the actions of those they are accused of killing? Does it matter that the peace of mind of settlers has been given more worth than the lives of young Indigenous men?
The full details of this story remain unknown but perhaps, as a gentle starting suggestion, we should be careful in how we tell the story of Forster’s death. As we have seen, it is not straightforward. A whole host of questionable decisions were made under the guise of “justice”, and it was not just Forster and Lundy who were victims. Sylvester, too, never stood a chance.
There are a lot of references in this post, so I’ll break everything up by subject
Copies of these remain unavailable online through BC Archives, so in the interest of making them accessible:
Newspaper Articles: Frank Sylvester
Most of this coverage is in papers currently behind a paywall. If you want to read these and don’t have an account, send me an email (firstname.lastname@example.org) and I’ll be happy to send them along.
Court Records and Newspaper Articles: Eneas and Richardson George
These should all be open access. I was quite frustrated by the disconnect between how this case is discussed in these primary sources, and how the story has come to be told more popularly. Much as in the case against Sylvester, the case against the George brothers tends to be presented today as a straightforward one.
Other Death Sentence Cases
I’ll note that when reading about these other cases, in not one of them was I satisfied that the case against the accused was so bullet proof as to justify the death penalty.
Charles Russell and Earl Dunbar
(I tried to find this man’s full name, but not even his death certificate includes it. This is the case mentioned in the above post against a Black man)