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Judicial System of Ontario William Renwick Riddell

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Judicial System of Ontario William Renwick Riddell University of Minnesota Law School Scholarship Repository Minnesota Law Review 1919 Judicial System of Ontario William Renwick Riddell Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Riddell, William Renwick, "Judicial System of Ontario" (1919). Minnesota Law Review. 2505. https://scholarship.law.umn.edu/mlr/2505 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. MINNESOTA LAW REVIEW VOL. III JANUARY, 1919 No. 2 THE JUDICIAL SYSTEM OF ONTARIO WHEN, in 1791, the Province of Upper Canada began its sep- arate existence, it consisted in fact of considerably more territory than the present Province of Ontario. The Royal Proclamation of October, 1763,1 had created a "Government" of Quebec, the western boundary of which was a line drawn from the southern end of Lake Nipissing to the point at which the present inter- national boundary crosses the St. Lawrence. But the Quebec Act of 17742 much enlarged the Province of Quebec; the south- ern boundary was extended along the St. Lawrence, Lake On- tario, the Niagara River, the south shore of Lake Erie to the west- ern limit of Pennsylvania, then south along the western limit to the Ohio River and down the Ohio to its junction with the Mississippi, then "northward" to the Hudson's Bay Company's Territory. (The word "northward" was long afterwards authori- tatively interpreted as meaning "up the Mississippi.") 3 1 This Proclamation may be read in Shortt & Doughty's Constitutional Documents 1759-1792, published by the Dominion Archives or in the Re- port for 1906 of the Ontario Archives. 2 14 George III Chap. 83 (Imp.). s The Dominion of Canada made as the eastern boundary of the new Province of Manitoba the western boundary of the Province of Ontario (formerly Upper Canada), and claimed with Manitoba that "Northward" meant due "North" so that the boundary line would intersect Lake Su- perior. Ontario claimed that "Northward" meant up the Mississippi to its headwaters. An arbitration decided that Ontario's contention was sound and this-was approved by the Judicial Committee of the Privy Coun- cil. We must therefore consider the western boundary of the Province of Quebec as fixed by the Quebec Act as running up the Mississippi to the northwest angle of the Lake of the Woods and thence due north. MINNESOTA LAW REVIEW When Quebec was divided into two Provinces, Upper Can- ada and Lower Canada, all to the east and the west of a certain line4 and the Ottawa River became the Provinces of Lower Can- ada and Upper Canada respectively. Before this, however, the Treaty of 1783 had given to the United States the territory to the right of the Great Lakes and connecting rivers. But Britain held the military posts Michillimackinac, Detroit, Niagara, Os- wego, Oswegatchie, etc., until August, 1796, when they were given up under Jay's Treaty of 1794, thereby reducing the de facto Upper Canada to the Upper Canada de jure, now the Province of Ontario.5 The English Law, civil and criminal, had been introduced into Quebec by the Proclamation of 1763; but the Quebec At of 1774 had displaced the English civil law by the previously exist- ing Canadian law, in substance the Coutume de Paris, while the 6 English criminal law remained in full force. The Canada Act or Constitutional Act of 17917 provided for a Parliament of two Houses for each of the new Provinces with full power to determine and enact such laws as should be thought advisable for the Province. At the time of the passing of this Act the territorial unit for the administration of justice was the District.8 In 1763 the whole ."Government of Quebec" was divided into two Districts; 9 in 1788 the territory afterwards Upper Canada, theretofore part of the District of Montreal,'0 was divided into four Districts," 4 Still the boundary line between the Provinces of Ontario and Quebec. 5These posts were retained by Britain until the agreement in the Treaty of 1783 was implemented that British creditors should not be prevented from recovering the debts lawfully due them by citizens of the new nation. By Jay's Treaty of 1794, the United States agreed to phy these debts, and the posts were delivered up in August, 1796. GExcept as modified by statute, the English criminal law as it stood in 1763 is still in force throughout Canada. 731 George III, Chap. 31 (Imp.). It was during the debate on this statute in the House of Commons at Westminster that the historical quar- rel between Burke and Fox took place. 8 There were during the latter part of the French regime three divi- sions or districts for judicial purposes in Canada; viz., those of Quebec, Trois Rivi~res, and Montreal. The first British Governor formed only two, as there were not enough English speaking persons at Trois Ri- vires who could be made Justices of the Peace. 0 Those at Quebec and Montreal. 10 The District -of Montreal stretched from the River St. Charles west- ward as far as the Province reached. "Luneburg, Mecklenberg, Nassau and Hesse, being the territory round Cornwall, Kingston, Niagara, and Detroit respectively; the names of these were changed by the first Parliament of Upper Canada (1792) into East- ern, Midland, Home (Niagara being then the capital of the Province), and Western. THE JUDICIAL SYSTEM OF ONTARIO and another District (Gasp6) was formed of the eastern part of the District of Quebec; while afterwards a District of Three Rivers was formed between those of Montreal and Quebec. In each District there was a Court of Common Pleas of un- limited civil but no criminal jurisdiction 12 and a Prerogative Court for probate of wills, etc. There was also a Court of General (or Quarter) Sessions of the Peace, composed of all the Justices of the Peace in and for the District, which sat quarterly and tried criminal cases with a jury13 and which had certain administra- tive jurisdiction; these did not try capital cases. The French Canadian never tired of wondering that the Eng- lish preferred an adjudication of their rights by tailors and shoe- makers rather than by their judges, and consequently most of the civil cases were tried by judges without the intervention of a jury; but some concession was made by Ordinances of Quebec to the love of the English speaking for the jury system. There was also a Court of King's Bench for the Province which had full criminal jurisdiction, but only appellate jurisdic- tion in civil matters. This was presided over by the Chief Jus- tice of the Province who had no seat in the Courts of Common Pleas. There were also Courts of Oyer and Terminer and Gen- eral Gaol Delivery in each District once a year or oftener to try criminal cases including capital cases ;14 these were all jury courts. The first Parliament of Upper Canada met in the summer of 1792 at Newark (now Niagara-on-the-Lake) and by the very first chapter of its first statute it made the English law the rule of decision in all cases of property and civil rights, 5 and since that time in this Province the law has been and is the English law, 12 The Judges of the Courts of Common Pleas, three in each Court (except that of Hesse), were all laymen, except the Judge of the Hesse Court who lived at Detroit. He was the only Judge of that Court and was the well-known William Dummer Powell, born in Boston, Massachusetts, who afterwards became Chief Justice of Upper Canada. These Judges were all justices of the peace, and in that capacity sat in the General Ses- sions of the Peace with extensive criminal jurisdiction; some of them also received commissions of Oyer and Terminer and General Gaol Delivery, from time to time, which empowered them to preside at the Criminal Assizes. 1 Theoretically the General Sessions could try all felonies and mit- demeanors, and in the Tudor and Stuart times many thousands of cul- prits were hanged on the order of such Courts; but by the time of which we are now speaking capital offences were left for the Assizes to try. 14 There were the Courts generally called "Criminal Assizes" presided over by Judges who received a special commission for the purpose. Is (1792) 32 George III Chap. 1 (U. C.). The English rules of evi- dence were also introduced by the same Act. MINNESOTA LAW REVIEW civil and criminal, as it was in 1792 and as modified by local leg- islation. The second chapter'8 directed all issues of fact, also all assessments of damages, to be determined by a jury. As this would prove a serious burden to litigants in cases of small im- portance, Courts of Requests were provided 17 in every locality, presided over by two or more Justices of the Peace with juris- diction up to forty shillings ($8.00) ; the four Courts of Common Pleas were left standing until two years later. In 1793 the Prerogative Courts were abolished and a Court of Probate' erected, with Surrogate Courts in each District.'8 But the whole system was revolutionized in 1794 when the Courts of Common Pleas were abolished and a Court of King's Bench erected with a Chief Justice and two puisne Justices and with full jurisdiction, civil and criminal, for the whole Prov- ince.'" This sat at the Capital of the Province "in term," but Commissions of Assize and Nisi Prius, Oyer and Terminer and General Gaol Delivery issued to the Judges of this Court to hold trial Courts in each District,'0 generally twice a year.
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