THE

CRIMINAL LAW OF CANADA.

INTRODUCTORY CHAPTER.

THE ENGLISH CRIMINAL LAWS PREVAILING IN THE DOMINION.

COLONIES may be acquired by occupancy, conquest and cession. When a colony is acquired in either of these modes, it becomes material to consider what laws apply and are in force therein.

On the acquisition of a colony by occupancy, all English laws applicable and necessary to its state and condition are immediately in force, such as the general rules of inheritance and of protection from personal wrongs; but other provisions applicable and peculiar to a people in a more advanced state of civilization and artificial refinement are neither necessary nor convenient in a new and undeveloped country, and therefore are not in force. (a)

In conquered colonies, the laws existing at the time of the conquest, except such as are contrary to the laws of

(a) Uniacke v. Dickson, 1 James, 300, per Hill, J., confirmed by Smyth v. McDonald, 1 Oldright, 274; Doe dem Anderson v. Todd, 2 U. C. Q. B. 84, per Robinson, C. J.

God, remain in force until altered by the conquering power. The latter, however, can impose on the subjugated people such laws, imperial or otherwise, as may be thought fit. (a)

In ceded colonies the same general rule prevails as in conquered colonies, except in so far as the power of the crown may be modified by the treaty on cession.

The Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, and Manitoba, are all colonies of the British Empire.

It is not perfectly clear under what modes of acquisition these respective colonies can be classed. The country was originally discovered and to some extent settled by the French, and the latter claimed the whole territory from the Gulf of the St. Lawrence to the then unknown western wilds. By the treaty of Utrecht, signed in 1713, France ceded to England the present Provinces of Nova Scotia and New Brunswick, then called Acadia; and by the treaty of Paris, concluded in 1763, the entire territories claimed by the French, including the present Provinces of Ontario, Quebec and Manitoba, were ceded to the Imperial Crown. As to the Provinces of Ontario Manitoba and Quebec, there seems little doubt that their acquisition may be ascribed to cession founded on con. quest; the two former especially, for when the treaty was ratified no settlements had been made in them.

In the case before referred to, (b) Nova Scotia seems to have been treated as a settled colony; in other words, as acquired by occupancy. If this be the correct view, New Brunswick would fall within the same class, as it and Nova Scotia formerly comprised one Province, and the division was only effected in 1784.

(a) Doe dem Anderson v. Todd, supra. (b) Uniacke v. Dickson, 1 James, 287.

It would seem that, as to the English laws prevailing in Nova Scotia and New Brunswick, they may be treated as settled colonies. If they were treated as ceded colonies, then the laws existing at the time of the cession would remain in force until altered by the Imperial Parliament. No such alteration, at least so far as the author is aware, has been made, nor has any Imperial statute or proclamation expressly extended the English laws to these colonies. The law of England, both civil and criminal, with certain restrictions and limitations, prevails therein. The early settlers of the country must therefore have carried with them such English laws as were applicable to their condition as an infant colony. The fact that no Imperial Legislation has taken place with reference to these Provinces seems to strengthen this view, for in the case of a settled colony the Crown cannot alter or impose laws or otherwise interfere in the legislation of the country as in the case of conquest or cession. (a)

We now proceed to consider more particularly the English criminal laws prevailing in the several Provinces of the Dominion. By the Royal Proclamation of 1763, the criminal law was introduced into the Province of Quebec, as there defined, and by the Imperial Statute, 14 Geo. 3, c. 83, it was extended to the whole of the present Provinces of Ontario and Quebec. This statute, after reciting the benefits and advantages resulting from the use of the criminal law since its introduction by the proclamation of 1763, enacted that the same should continue to be administered and observed as law, "as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted." It took effect on the 1st of May,

(a) See, however, Jouett v. Lockwood, 2 Kerr, 683, per Chipman, C. J.

1775. In Ontario, however, the 40 Geo. 3, c. 1, was subsequently passed, and introduced the criminal law of England as it stood on the 17th day of September, 1792, "and as the same has since been repealed, altered, varied, modified or affected by any Act of the Imperial Parliament having force of law in Upper Canada, or by any Act of the Parliament of the late Province of Upper Canada, or of the Province of Canada, still having force of law, or by the Consolidated Statutes relating to Upper Canada, exclusively, or to the Province of Canada."

The criminal law, therefore, in the Provinces of Ontario and Quebec, has been introduced by express statutes, but in the former, by the 40 Geo. 3, c. 1, it was brought down to a more recent date than in the latter.

The authority for the introduction of the English criminal laws into Nova Scotia and New Brunswick has been already shewn.

With regard to the Province of Manitoba, Imperial legislation has from time to time taken place, with, however, very little practical effect. This legislation is comprised in three statutes, the first of which was passed in 1803, the second in 1821, and the last in 1850. The first was the 43 Geo. 3, c. 138, and it enacted that all offences committed within any of the Indian territories, or parts of America not within the limits of either of the Provinces of Lower or Upper Canada, or of any civil government of the United States of America, shall be and be deemed to be offences of the same nature, and shall be tried in the same manner, and subject to the same punishment as if the same had been committed within the Provinces of Upper and Lower Canada. It also gave power to the Governor of Lower Canada to appoint persons to act as Justices in the Indian territories, for the purposes,

not of trying, but merely of hearing and committing for trial in Lower Canada; and the Governor of that Province, if the case seemed to require it, could order the trial to take place in Upper Canada. The second statute (1 & 2 Geo. 4, c. 66) extended the Act of 1803 to all the territories of the Hudson Bay Company. It conferred power on the Crown to appoint Justices of the Peace in those territories, in special terms, including the territories of the Hudson Bay Company, with power to such Justices to take evidence in the country, to be used in the Courts of Upper and Lower Canada. It gave further authority to the Crown to issue commissions under the Great Seal, empowering Justices to hold Courts of Record for the trial of criminal offences, notwithstanding anything contained in the Hudson Bay Company's charter. The times and places for holding these Courts were to be determined by His Majesty; but their power was not to extend to the trial of capital offences. The third in this series of statutes is the 22 & 23 Vic. c. 26. This Act recites the main provisions of the 43 Geo. 3, and of the 1 & 2 Geo. 4, and empowers the Crown, either by commission or Order in Council, to authorize such justices as might be appointed to try, in a summary way, all crimes, misdemeanors and offences whatsoever, and to punish by fine or imprisonment, or both. In cases punishable by death, or in which, in the Justices' opinion, fine and imprisonment were inadequate to the offence, they might either try the offender in the ordinary way, or send him to Upper Canada to be tried there, under the Act of Geo. 4, or if they saw fit, to British Columbia, to be tried by any Court having cognizance of like offences committed there. This last mentioned Act, however, in the final section, is declared not to extend to the territories of the Hudson Bay Company.