MR. JUSTICE RICHARDSON:
Gentlemen of the jury, that this is an important case and will require your very serious consideration, there can be no shadow of doubt. The duties which devolved upon those gentlemen who had the prosecution in hand, are ended. They have called their witnesses, and you have heard what they have had to say; in addition to that and this is the only case in which it is permitted you have heard from the mouth of the accused what he has to say.
The remainder of the case rests with yourself and me. My duty is to show you, to place before you as well as I can, what the law is, to refresh your memory as to the evidence which has been given pro and con, and then leave the determination upon that evidence to yourselves.
Now, the charge against the prisoner is, as I told you, a very serious one. It is the most serious one in the whole criminal category. It is the charge of high treason. In order that I may not be mistaken, that I may not misplace any words, it will be right for me to read to you what high treason is. The charge of high treason, which is laid against the prisoner, is that of levying war against Her Majesty in her realms in these territories. It is founded upon a very old English statute, one on which is based the whole law of treason, and which was passed in the reign of Edward III: 'When a man do levy war against our Lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm or elsewhere and thereof he proveably attainted of open deed by the people of their condition, that this shall be one ground upon which the party accused of the offence and legally proved to have committed the offence, shall be held to be guilty of the crime of high treason
Now, in order to constitute the crime of high treason by levying war,
a standard authority lays down this: 'To constitute high treason by levying
war, there must be insurrection, there must be force accompanying that
insurrection, and it must be for the accomplishment of an object of a general
nature. And if all these circumstances are found to concur in any individual
case that is brought under investigation, that is quite sufficient to constitute
a levying of war.' The charge upon which the prisoner is upon his trial
is under that statute, that clause of the statute, and it charges him with
levying war upon Her Majesty at the locality of Duck Lake, North-West Territories,
also at Fish Creek, and also at Batoche. Having refreshed your memory as
to the evidence which was supplied on the part of the Crown, and which
you have heard on the part of the defense, it will be your duty to say
whether that has been proved or not. If it has not been proved, if the
evidence has not brought it home conclusively to this man, he should be
acquitted. If it has been brought home to the prisoner, then another question
turns up which you will
have most seriously to consider, is he answerable?
My intention now is to read the evidence which has been taken. I feel it my duty to do so, from the way it has been given, and after I have read it, to draw your attention to it and to make a few observations that occur to me, which may be useful to yourselves in arriving at a conclusion. Before I read the evidence, I may remark that before the prisoner can be convicted you must be satisfied that he was implicated in the acts charged against him. It must be brought home to him, otherwise he is entitled to be acquitted. If you are satisfied that he was implicated in the acts in which he is said to have been implicated, he must as completely satisfy you that he is not answer able by reason of unsoundness of mind.
You will recollect that there are two points which you must consider; first, was this man implicated, supposing him to be sane, in the acts charged against him? It is for the Crown to satisfy you upon that. If he was so implicated, are you satisfied, from what has been shown, that he is not answerable?
(The Court adjourned at six o'clock.)
Saturday, 1st, August 1885
(Court opened at 10 A.M.)
Gentlemen of the Jury: In opening my remarks to you yesterday afternoon, I explained to you that an important duty devolved upon us, one share of it upon myself and the other upon yourselves. My part of that duty being to see that you recollect the evidence placed before you, and that any salient points that struck me as important, and that might assist you in your deliberation, are brought to your notice, and also that the law as it relates to this case is laid fairly before you, and then I will leave it to you to determine upon the evidence as to the guilt or innocence of the prisoner. I explained to you that the features of this case differ from ordinary cases, in that it presents for your consideration, first, the question whether or not (what is in legal phraseology) the 'overt acts' charged have been committed, and whether the prisoner was a participant in those acts. If that has not been brought home to the prisoner, if the Crown has not satisfied you conclusively upon that point, the prisoner should be acquitted out and out. If, on the other hand, you feel that he was so implicated, you have to determine the further question, whether it has been shown with equal conclusiveness that this man was not answerable for the commission of the acts charged against him.
Before proceeding with my remarks, I think I ought to digress for a few moments. Reference has been made to the question of jurisdiction. With that we have really nothing to do, we have simply to perform the duties imposed upon us by law. Still it may not be out of place to tell you how that duty comes to be imposed on us.
In the first place, Great Britain owning these territories transferred the administration of peace, order and the good government of them to the Dominion Parliament. That was in 1871. The Parliament of Canada accepted this charge, and in 1875 passed their first law, by which the prisoner would have been tried in the territories by the chief justice, or one of the judges of the Queen's Bench of Manitoba, with a stipendiary magistrate beside him and a jury of eight. This was brought into force in 1876, but for some reason, possibly owing to difficulties in its working, was altered in 1877. It was altered by providing that instead of a judge from Manitoba being sent here, the court should be held in the territories, and presided over by a stipendiary magistrate and two justices of the peace, with the intervention of a jury of six, that is in cases of capital offences. It having been found inconvenient, and probably, in some cases, impossible to get the number of magistrates required in all places, the statute of 1880 was passed, reducing the number of magistrates sitting with the stipendiary magistrates to one, and there the law stands. The council for the defense, in the exercise of their duty, and I think in a proper manner, and at a proper time, objected to the jurisdiction of this court. They deemed it right to say that the law is not such a law as the Parliament of Canada can pass, and that there fore this court has not jurisdiction to try this case. It may perhaps strike you as strange, but at the same time all the counsel knew it as lawyers that while it was a proper time for them to make that objection, I sitting here could not say whether they were right or wrong in their opinions, and why? I will tell you, because in the Act of 1877, when Parliament altered the law relieving the provincial judges from coming into the territories to hold such courts, a provision was made which does not exist in any of the Provinces, that if the accused felt aggrieved on his trial, there should be an appeal to the Court of Queen's Bench in Manitoba. They did not allow this right of appeal to the Crown, it is a special privilege given to those accused of capital offences. Having accepted a commission under the law, it would strike one as strange that I should take it upon myself without any thing further to say that the Parliament of Canada had exceeded their power and should not have passed that Act. I was not called upon to do that. That question had been disposed of within a few days before this objection was raised. In deciding that the Court of Queen's Bench held that the Act of Parliament of Canada passed in 1880, was not ultra vires that is that the Parliament of Canada did not exceed their powers in passing it, and therefore it would have been a piece of utter impertinence on my part to question their decision. At the same time the exception was very properly put on the record and at the proper time.
You have heard, and are masters of the evidence, and therefore I will be very brief in making what remarks I have to make to you. The questions really for you to determine are, first, are you satisfied that there was a rebellion? If you are satisfied that there was a rebel lion, as I think you must be, the first question I will ask then is it brought home conclusively to you that the prisoner at the bar was implicated? In charges of this sort there are no classes, no accessories, all are principals. If you are conclusively convinced that the prisoner was implicated, then has anything been shown here to relieve him from responsibility? His counsel. urged that at the time he committed the acts charged he was of unsound mind, that he did not know what he was doing, and for that reason he should be acquitted. This question of unsoundness of mind has given rise in former years to a very great deal of consideration. I heard a case referred to yesterday which resulted in a great scandal in Great Britain. That was not the only case, it was followed some years afterwards by a case involving still greater scandal. The law has been put in such a shape now that when the question was set up, judges may be able to tell the jury fixedly in words what their duties are in regard to responsibility for crime when insanity is set up as a defense. As to insanity, as you saw yesterday, doctors differ as do lawyers. Month by month I may say, week by week, additions are made to classes of mania, new terms are used, branches which were under the simple category of mania come out with new names. I heard a name given in evidence yesterday that I never heard before, megalomania, but it seems to be accepted as a symptom or as a fixed branch of insanity, but it is not every man who is pronounced insane by the doctors and who from charity or kindness should be placed under restraint and be put in one of the asylums; it is not I say, everyone of them that is to be held free from being called upon to answer for offences he may commit against the criminal law.
The line is drawn very distinctly, and where the line is drawn I will tell you shortly. Before doing so, and to assist you in your deliberations, let me draw your attention to some points suggested to my mind by the evidence. You recollect the statements as to the prisoner's appropriating property, and making prisoners of others simply because they, to his idea, opposed him in his movements. It has been suggested by the Crown, in reference to the $35,000, that it tends to show that this was all a scheme of the prisoner's to put money in his own pocket. Be that as it may, one of the witnesses, Nolin, speaks distinctly as to the $35,000, and on that branch of his evidence we have his corroborated by the priest Father Andre, and further by Jackson. Then you have heard the evidence given by Captain Young as to the conversations he had with the prisoner. Witness after witness gave evidence as to what occurred in March, at the time of the commencement of this rebellion. Some of them speak of the prisoner being very irritable when the subject of religion was brought up. It appears, however, that his irritability had passed away when he was coming down with Captain Young, as we do not hear anything of it then. Does this show reasoning power?
Then at what date can you fix this insanity as having commenced? The theory of the defense fixes the insanity as having commenced only in March, but threats of what he intended to do began in December. Admitting that the insanity only commenced about the time of the breaking out of the rebellion, what does seem strange to me is that these people who were about him, if they had an insane man in their midst, that some of them had not the charity to go before a magistrate and lay an information setting forth that there was an insane man amongst them, and that a breach of the peace was liable to occur at any moment, and that he should be taken care of. I only suggest that to you, not that you are to take it as law, I merely suggest it to you as turning upon the evidence. Having made the remarks I have, I am simply called upon to tell you what is legal insanity, insanity in the eye of the law, so far as crime is concerned. The Crown must in all cases, particularly such as this, bring home conclusively the crime charged to the prisoner. If the Crown has done that, on the prisoner rests the responsibility of relieving himself from the consequences of his acts. The law directs me to tell you that every man is presumable to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to your satisfaction. And that to establish a defense on the ground of insanity, it must be clearly proved that at the time he committed the act, the party accused was laboring under such defective reasoning from a diseased mind as not to know the nature and quality of the act he was committing, or that if he did know it, that he did not know that he was doing wrong. That I propound to you as the law.
If the evidence conclusively satisfies you that the prisoner was implicated in these acts or in any of them I may say, has it been clearly proved to you that at the time he committed those acts he was laboring under such defective reasoning caused by disease of the mind as not to know the nature and quality of the act he was committing, or if he did know it, that he did not know that he was doing wrong? If the evidences convinces you and convinces you conclusively that such was the case, then your duty is to acquit the prisoner on that ground, and you are required to declare that he is acquitted by you on account of such insanity.
I think I have reduced my remarks within the smallest possible compass. You have been kept close at this case since Tuesday morning, and I cannot conceive that any further remarks would be of any assistance to you. On you rests the responsibility of pronouncing upon the guilt or innocence of the prisoner at the bar. Not only must you think of the man in the dock, but you must think of society at large, you are not called upon to think of the Government at Ottawa simply as a Government, you have to think of the homes and of the people who live in this country, you have to ask your selves, can such things be permitted? There was one point I intended to have mentioned but which has escaped me. You will bear in mind that the law of the land under which this trial is held was objected to on behalf of the prisoner, and he has a perfect right to object to it, but the law of the land was in existence years before he came into this country three years ago, that Act came into force in 1875, and the law which he is said to have broken has been in existence for centuries, and I think I may fairly say to you that if a man chooses to come into the country, he shall not say, I will do as I like and no laws can touch me. A person coming into the country is supposed to know the law, it is his duty. We have the law given to us and we are called upon to administer it. I, under the oath that I have taken, and you, under the oath administered to you on Tuesday morning, are to pass between this man and the Crown. If therefore the Crown has not conclusively brought guilt home to the prisoner, say so, say that you acquit him simply by reason of that.
(The jury deliberates, then returns.)
Clerk of the Court: Gentlemen are you agreed upon your verdict? How say you, is the prisoner guilty or not guilty?
(The jury find the prisoner guilty.)
Clerk: Gentlemen of the jury, hearken to your verdict as the court records it, 'You find the prisoner, Louis Riel, guilty, so say you all.'
(The jury answer 'guilty.')
A JUROR: Your Honors, I have been asked by my brother jurors to recommend the prisoner to the mercy of the Crown.
MR. JUSTICE RICHARDSON: I may say in answer to you that the recommendation
which you have given will be forwarded in proper manner to the proper authorities.