COUNSEL: Bigham, Q.C. (Jeune, and Fitzpatrick, of the Canadian Bar, with him), for the petitioner.

The Attorney-General (Sir Richard Webster, Q.C.), R. S. Wright,and Danckwerts, for the Crown.

Burbidge, Q.C. (the Canadian Deputy-Minister of Justice), represented the Government of Canada.

 

 

SOLICITORS: For Appellant: Ingledew, Ince & Colt.

For the Crown: The Treasury.

 

JUDGES: The Lord Chancellor (Lord Halsbury), Lord Fitzgerald, Lord Monkswell, Lord Hobhouse, Lord Esher, And Sir Barnes Peacock.

 

DATES: 1885 Oct. 21, 22.

 

 

Practice – Leave to appeal in Criminal Cases – Validity of 43 Vict. c. 25 (Canada).

 

The rule of the Judicial Committee is not to grant leave to appeal in criminal cases except where some clear departure from the requirements of justice is alleged to have taken place.

 

Held, that 34 & 35 Vict. c. 28, which authorizes the Parliament of Canada to provide for “the administration, peace, order, and good government of any territory not for the time being included in any province” vests in that Parliament the utmost discretion of enactment for the attainment of those objects. Accordingly Canadian Act 43 Vict. c. 25, is intrà vires the legislature.

 

Sect. 76, sub-sect. 7, which prescribes that full notes of evidence be taken is literally complied with when those notes are taken in shorthand.

 

IN July, 1885, the petitioner was tried for the crime of treason before a stipendiary magistrate and a justice of the peace, with the intervention of a jury of six persons, in the North-West Territories of the Dominion of Canada, and having been found guilty was sentenced to death.

 

The Court of Queen’s Bench for the province of Manitoba in appeal confirmed the sentence.

 

The petitioner applied for special leave to appeal on the grounds, as stated in his petition, that the stipendiary magistrate and justice had no jurisdiction to try him for treason; if they had there were errors in procedure which vitiated the trial: viz., there was no indictment preferred by a grand jury, no coroner’s inquisition, the evidence was not taken down in writing as required by statute. [*676]

 

Bigham, Q.C. (Jeune, and Fitzpatrick, of the Canadian Bar, with him), for the petitioner, contended that leave ought to be granted. A substantial question of law arose, whether the Court of first instance had jurisdiction to try the prisoner in the way it did. After referring to the British North America Act, 1867, ss. 17, 18, 58, 69, 91, and 92, and especially sub-sect. 27 of the latter section, as shewing the powers of the Dominion Parliament and provincial governments and legislatures; sect. 146; sect. 129; 31 & 32 Vict. c. 105; Canadian Acts, 32 & 33 Vict. c. 3, and 33 Vict. c. 3; Imperial Act, 34 & 35 Vict. c. 28 (British North America Act, 1871), s. 4, it was observed that the offence and trial were not in Manitoba, but in the North-West Territory, which became part of the Dominion under the Act of 1871; and that the petitioner was consequently tried under 43 Vict. c. 25 (Canada), s. 76 being the important section. The sub-sections do not give jurisdiction; if they purport so to do they are ultrö vires of the legislature. Treason is in a peculiar manner an offence against the State, and the Imperial Parliament could not have intended that the Dominion Parliament should legislate upon it to the extent of altering the statutory rights of a man put upon his trial regarding it. The petitioner is entitled to all the rights which he possessed under English law unless they have been specifically taken away. He possesses statutory rights under 7 & 8 Will. 3, c. 3 to a trial before a judge and by a jury of twelve, with a right of challenging thirty-five. The Dominion Parliament under the British North America Act, 1871, s. 4, has no power to take away those rights, and render him liable to be tried before two magistrates and a jury of six, with a right of challenging six. The Act relied upon was not necessary for peace, order, and good conduct.

 

[SIR BARNES PEACOCK:– The same words occur in the Act under which the Indian Penal Code and Code of Criminal Procedure were passed and authorized those Acts.]

 

Reference was then made to sub-sect. 7 of sect. 76 of the Act of 1880, and objection was made that the evidence was taken in shorthand, not legible to any one but a particular person. It was not writing within the meaning of the section. [*677]

 

[LORD HALSBURY, L.C:– Is there any authority for appeal in criminal cases?]

 

Reg. v. Murphy(1); Reg. v. Bertrand(2); Reg. v. Coote(3) 1v.

 

The Attorney-General (Sir Richard Webster, Q.C.), R. S. Wright,and Danckwerts, for the Crown, were not called upon.

 

Burbidge, Q.C. (the Canadian Deputy-Minister of Justice), represented the Government of Canada.

 

The judgment of their Lordships was delivered by

 

LORD HALSBURY, L.C.:–

 

This is a petition of Louis Riel, tried in July last at Regina, in the North-West Territories of Canada, and convicted of high treason, and sentenced to death, for leave to appeal against an order of the Queen’s Bench of Manitoba, confirming that conviction.

 

It is the usual rule of this Committee not to grant leave to appeal in criminal cases, except where some clear departure from the requirements of justice is alleged to have taken place. Whether in this case the prerogative to grant an appeal still exists, as their Lordships have not heard that question argued, they desire neither to affirm nor to deny, but they are clearly of opinion that in this case leave should not be given. The petitioner was tried under the provisions of an Act passed by the Canadian legislature, providing for the administration of criminal justice for those portions of the North-West Territory of Canada in which the offence charged against the petitioner is alleged to have been committed. No question has been raised that the facts as alleged were not proved to have taken place, nor was it denied before the original tribunal, or before the Court of Appeal in Manitoba, that the acts attributed to the petitioner amounted to the crime of high treason.

 

The defence upon the facts sought to be established before the jury was, that the petitioner was not responsible for his acts by reason of mental infirmity. The jury before whom the petitioner

 

(1) Law Rep. 2 P. C. 535.

 

(2) Law Rep. 1 P. C. 520.

 

(3) Law Rep. 4 P. C. 599. [*678]

 

was tried negatived that defence, and no argument has been presented to their Lordships directed to shew that that finding was otherwise than correct. Of the objections raised on the face of the petition two points only seem to be capable of plausible or, indeed, intelligible expression, and they have been urged before their Lordships with as much force as was possible, and as fully and completely in their Lordships’ opinion as it would have been if leave to appeal had been granted, and they have been dealt with by the judgments of the Court of Appeal in Manitoba with a patience, learning, and ability that leaves very little to be said upon them.

 

The first point is that the Act itself under which the petitioner was tried was ultrà vires the Dominion Parliament to enact. That parliament derived its authority for the passing of that statute from the imperial statute, 34 & 35 Vict. c. 28, which enacted that the parliament of Canada may from time to time make provision for the administration, peace, order, and good government of any territory not for the time being included in any province. It is not denied that the place in question was one in respect of which the parliament of Canada was authorized to make such provision, but it appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order, and good government cannot, as matters of law, be provisions for peace, order, and good government in the territories to which the statute relates, and further that, if a Court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultrà vires and beyond the competency of the Dominion Parliament to enact.

 

Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country have been authorized in Her Majesty’s Indian empire. [*679]

 

Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequence. There was indeed a contention upon the construction of the Canadian statute, 43 Vict. c. 25, that high treason was not included in the words “any other crimes,” but it is too clear for argument, even without the assistance afforded by the 10th sub-section, that the Dominion legislature contemplated high treason as comprehended within the language employed.

 

The second point suggested assumes the validity of the Act, but is founded upon the assumption that the Act has not been complied with. By the 7th sub-section of the 76th section it is provided that the magistrate shall take or cause to be taken in writing full notes of the evidence and other proceedings thereat, and it is suggested that this provision has not been complied with, because, though no complaint is made of inaccuracy or mistake, it is said that the notes were taken by a shorthand writer under the authority of the magistrate, and by a subsequent process extended into ordinary writing intelligible to all. Their Lordships desire to express no opinion what would have been the effect if the provision of the statute had not been complied with, because it is unnecessary to consider whether the provision is directory only, or whether the failure to comply with it would be ground for error, inasmuch as they are of opinion that the taking full notes of the evidence in shorthand was a causing to be taken in writing full notes of the evidence, and a literal compliance therefore with the statute.

 

Their Lordships will, therefore, humbly advise Her Majesty that leave should not be granted to prosecute this appeal.