Criminal Law in Upper Canada a Century Ago

Abstract

'LL.D., F.R.S. Can., etc., Justice of Supreme Court of Ontario. 2\Vhile after formation of province there seems to have been no statutory or other obligation of a legal nature upon them so to do, it was custom beginning of separate provincial life of Upper Canada in 1792, as before, for trial judges to make a report to lieutenant governor upon every capital case in which a conviction was made and prisoner sentenced to death. In 1841 by Act (1841) 4, 5, Vic., C. 24 (Can.), it was enacted, sec. 32, that and after January 1, 1842, it should not be necessary that reports should be made to governor in case of a prisoner convicted and sentenced to death, law, usage or custom to contrary notwithstanding. Thereafter it was not custom to report unless a report was called for by government. Two years after formation of Dominion of Canada, Act (1869), 32, 33 Vic., C. 29 (Dom.), by sec. 107, continued provision of Act of 1841, but added that if judge thought that executive clemency should be extended to prisoner, or if there were a point of law reserved in case still undecided, or from any other cause it becomes necessary to delay execution, prisoner might be reprieved for a sufficient time. Four years thereafter, by Act (1873), 36 Vic., C. 3 (Dom.), it was enacted that the judge before whom such prisoner has been convicted shall forthwith make a report of case to secretary of state of Canada for information of governor; and day to be appointed for carrying sentence into execution shall be such as in opinion of judge will allow sufficient time for signification of governor's pleasure before such day. . This was carried into Consolidated Statutes of Canada (1886), C. 181, sec. 8, into Code of 1892, 55, 56 Vic., C. 29, sec. 937, and now appears in Criminal Code (1906), C. 146, sec. 1063. In quoting statutes, our custom is to refer them to year of reign of sovereign, thus: 30 Geo. III means in 30th year of reign of King George third. Sometimes a parliamentary session takes up part of two,years of reign, in which case, terminology, such as 35, 36 Vic. is used. This means in session of Parliament holden in 35th and 36th year of reign of Queen Victoria. For practical purposes, lawyer need remember only dates of accession of George III, George IV, William IV, Victoria, Edward VII, and George V, all of whom, except Queen Victoria, had prudence to come to throne in a decimal year; dates are, therefore, easily remembered, 1760, 1820, 1830, 1837, 1900, and 1910. As Imperial Parliament continued to pass legislation affecting Canada, it is often necessary to distinguish different legislative bodies; for that reason contraction (Imp.) is generally added to Imperial legislation; (U. C.) indicates legislation by Parliament of Upper Canada; (L. C.) that of Lower Canada, both of which continued 1792 to 1841; (Can.) that of Province of Canada, which consisted of a union of two provinces of Upper and