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everything in this Act to the contrary thereof in any respect notwithstanding; subject, nevertheless, to such alterations and amendments as the Governor, Lieutenant-Governor, or Commander-in-Chief for the time being, by and with the advice and consent of the legislative council of the said province, hereafter to be appointed, shall from time to time cause to be made therein in manner hereinafter directed.”
The Constitutional Act of 1791, while dividing the Province of Quebec into Upper and Lower Canada, left each province with the law as it stood under the Act of 1774 (except of course as altered by provincial ordinances), but gave each province a legislature empowered to make laws for the peace, welfare and good government thereof. What Upper Canada would do, was pretty well understood. As was anticipated, she annuled the old French law, and a lopted the law of England as the rule for decision of all controversies relative to property and civil rights; and she not merely adhered to the criminal law of England, as introduced by the proclamation of 1763, and continued by the Quebec Act, above quoted, but she went further, and by 40 Geo. III. c. 1, enacted that “the criminal law of England as it stood on the 17th day of September, A.D. 1792, shall be, and the same is hereby declared to be, the criminal law of this province."
Under this statute, every Act of the British parliament in force as part of the general criminal law of England on the 17th day of September, 1792, was introduced into Upper Canada. The date in reference to which the English criminal law should be considered in force was thus brought forward by 18 years, and under it, as well as under the Quebec Act of 1774, the enquiry proper under the common law as to the applicability of an Imperial Act to the circumstances of a colony was eliminated, and the only enquiry is—Is the Imperial statute local in the sense we have mentioned? If not, it is part of the law of Upper Canada.
We must, however, again repeat that we are dealing in this chapter with English statutes of no express application to the colonies, and the Provincial Act, 40 Geo. III. c. 1, applies only to such statutes (t). Imperial Acts which proprio vigore, apply to us, are treated of elsewhere. With this repeated caution, we proceed to consider some Canadian authorities upon the question of the introduction of English criminal law into Upper Canada (u).
In Beasley, qui tam, v. Cahill (v), it was held that the Imperial statute, 32 Hen. VIII. c. 9, against buying disputed titles, was in force in Upper Canada. It was contended that the statute was obsolete, even in England, and Robinson, C.J., remarked that this seemed to him rather singular, as the reasons assigned in the preamble of the Act for its passing, were reasons sufficient in all times; but notwithstanding that it seemed to have remained so long a dead-letter in England, he held the Act to be in force in Upper Canada, because “it constitutes part of the criminal law of England, which we have adopted by an express statute, introducing it as it stood in England on the 17th September, 1792" (w).
In Regina v. Mercer (x), certain English Acts against the buying and selling of offices were considered (5 & 6 Edward VI. c. 16, and 49 Geo. III. c. 126). The latter Act it will be noticed, is of a date subsequent to 1792, and does not therefore fall within our present enquiry; it was however held to be of express colonial application, and there
(0) Bank of U. C. v. Bethune, 4 U. C. Q. B. (O. S.) 165; see ante, p. 69.
(u) Since the above was written, the “Criminal Law” of Canada has been codified, and (it is understood, all necessity for reference to English criminal law obviated. As, however, the “criminal law" over which the Dominion parliament has legislative power, does not cover the whole field of penal legislation, what we have written may still be applicable in a few cases even in Ontario.
(1) 2 U. C. Q. B. 320.
(.r) 17 U. C. Q. B. 602 ; see also Foote v. Bullock, 4 U. C. Q. B. 480, and Reg. v. Moodie, 20 U. C. Q. B. 389.
fore in force here. The Act of Edward VI. was unanimously held to be part of our law. Robinson, C.J., adverts to the distinction between the two provincial Acts, 32 Geo. III. and 40 Geo. III., in the following language:
" It is denied that this statute has any force in Upper Canada. If that point dependeri merely on the question whether it is included in our adoption of the law of England, under our statute 32 Geo. III. c. 1,
a good deal might be urged against the application of the statute.
It is more to the purpose, I think, to consider whether 5 & 6 Edward VI, c. 16, should not be held to be in force here under our adoption of the criminal law of England by 40 Geo. III. c. 1, which enacted that the criminal law of England as it stood on the 17th of September, 1792, shall be, and it was thereby declared to be, the criminal law of Upper Canada. I think it must be held that the statute formed part of the criminal law of England which was thus introduced."
McLean and Burns, JJ., were equally free from doubt.
So likewise, in a number of cases, the English Lottery Acts were held to be in force in Upper Canada ; Cronyn v. Widder (y) being the leading case. Both in this case and Regina v. Mercer, above noted, it was urged that the statutes were not criminal statutes, but with the consideration which led the court in each instance to hold these Acts to be part of the criminal law of England, we have here nothing to do. It is more to our purpose to observe that having held them to be part of the English criminal law, the court applied them as part of the criminal law of Upper Canada, without entering upon any inquiry as to their adaptation or want of adaptation to the circumstances of Upper Canada.
And in Reid v. Inglis (2), Draper, C.J., speaking of the Act 1 Wm. & Mary, c. 18, “against disturbers of religious
(y) 16 U. C. Q. B. 356, and see Corby v. McDaniel, ib. 378. cases referred to in these, the Acts were not questioned.
(2) 12 U. C. C. P. 191.
meetings,” said: “I see no reason for holding that the Act is not in force here;" from which we would infer that, in his opinion, all English criminal statutes in force in England in 1792, are prima facie in force here (a).
And now-even at the risk of a charge of undue repetition--we must again point out, that in any case, the question whether or not any particular British statute of date anterior to 1792, has the force of law in Ontario, will depend, in the first place, upon the absence of colonial legislation-Canadian or Provincial, as the case may be on the subject matter involved. If there is none such, then the principles we have enumerated in the cases we have reviewed, will have to be considered, and may be summarized shortly by saying:
As to the criminal law, no question can arise, save the one question—Is the act one of general English application ? If so, it is, in the absence always of colonial legislation, as above specified, part of our law under 40 Geo. III. c. 1.
As to property and civil rights, the following points must be considered: (1) Is the Act one of general English application in the sense we have mentioned? (2) If so, is it an Act properly applicable to the circumstances—the commercial, religious, and social environments of this
province? (3) If not so applicable, or if the matter is one of reasonable doubt, has there been a legislative recognition of the Imperial Act, as being in force here? (4) Have the decisions of the courts proceeded so clearly upon one line, as to have established a rule of property or status in the province ?
It will be seen that, owing to the recognition by Upper Canadian judges of the propriety of making an inquiry as
(a) See Sheldon v. Law, 3 U. C. Q. B. (O.S.) 85, and Fulton v. James, 5 U. C. C. P. 182 (horse-racing) ; Reg. v. Milford, 20 O. R. 306 (9 Geo. II. c. 5, aguinst fortune telling), and Reg. v. Barnes, 45 U. C. Q. B. 276 (Lord's Day Act).
matter now stands : civil rights, resort shall continue to be had to the laws of testimony and legal proof in the investigation of fact, and the
to the applicability of any Imperial Act to the circumstances of this province, the principles upon which the decision must rest, in the case of any given statute, are the same (except as to criminal statutes) as those laid down in the decisions of the Nova Scotia and New Brunswick courts, and, as we shall hereafter see, the statutes by which this question is governed in the provinces more lately acquired, expressly make “ applicability” the test of their introcluction.
The English authorities upon this subject are sufficiently referred to in the extracts taken from the Canadian authorities. As pointed out by Chief Justice Halliburton, in Uniacke v. Dickson (6), those authorities lay down no very detinite principle to guide colonial judges in coming to a decision in this very important matter; and, for this reason, we have gone more elaborately into the authorities in the older provinces than might seem necessary, so far as those older provinces alone are concerned; but, owing to
Comparatively recent dates which have been fixed upon in the lately acquired provinces (c), as the date for the introduction of English law, the questions discussed in this chapter are certain to be of frequent occurrence in those provinces, and we, therefore, leave this chapter as originally written
So far as the province of Ontario is concerned, the
As to the law relutive to property and civil rightsupon R. S. O. (1887) c. 93, in which, after reciting 32 Geo.
1, the Legislative Assembly of Ontario enacts as “1. In all matters of controversy, relative to property and England, as they stood on the said 15th day of October, 1792,
, as the rule for decision of the same, and all matters relative to
(6) Ante, p. 78.
(c) Post, Chap. XIII. et seq.