J. S. Ewart, Q. C, and F. X. Lemieux and Chas. Fitzpatrick of the Quebec Bar for the prisoner.
C. Robinson, Q. C, and B. B. Osler, Q. C, both of the Ontario Bar, and J. A. M Aikins, Q. C, for the Crown.
WALLBRIDGE, C. J.- The prisoner was tried before Hugh Richardson, Esquire, a stipendiary magistrate in and for the North West Territories, in Canada, upon a charge of high treason. ?The trial took place on the twentieth day of July, A. D. 1885, at Regina, in that Territory, under the Dominion Act 43 Vic. c. 25, known as "The North West Territories Act, 1880."
Section 1 of that Act declares, that the territories known as Rupert's Land and the North West Territory (excepting the Provinces of Manitoba and Keewatin), shall continue to be styled and known as "The North West Territories."
Manitoba was erected into a separate Province by the Dominion Act 33 Vic. c. 3, (12th May, 1870,) intituled "An Act to amend and continue the Act 32 & 33 Vic. c. 3, and to establish and provide for the government of the Province of Manitoba." Since which time Manitoba has formed a distinct Province, with regularly organized Government, separate Legislature and Courts. By an Imperial Act passed in 34 & 35 Vic. c. 28, cited as "The British North America Act 1871," the Act 33 Vic. c. 3, providing for the government of the Province of Manitoba, was declared valid and effectual, from the day of its having received the Royal assent.
The North West Territories Act, 1880, before referred to, under the head "Administration of Justice," section 74, empowers the Governor to appoint, under the Great Seal, one or more fit and proper person or persons, barristers-at-law or advocates of five years standing, in any of the Provinces, to be and act as Stipendiary Magistrates within the North West Territories. And by sec. 76, each stipendiary magistrate shall have magisterial and other functions appertaining to any justice of the peace, or any to justices of the peace; and one stipendiary magistrate is by that section, and the four following sub-sections, given power to try certain crimes therein mentioned, in a summary way, without the intervention of a jury. For crimes thus enumerated, the prisoner can be punished only by fine or fine and imprisonment, or by being sentenced to a term in the Penitentiary. Sub-section 5 of section 76, however, under which this prisoner was tried, is in the following words:—
"In all other criminal cases, the stipendiary magistrate and a justice
of the peace, with the intervention of a jury of six, may try any charge
against any person or persons, for any crime."
Sub-section 10 of said section is in these words ;-
"Any person arraigned for treason or felony may challenge peremptorily, and without cause, not more than six persons." And by sub?section I, "The Crown may peremptorily challenge not more than four jurors."
If any doubt were entertained whether this Act was intended to extend to the crime of treason, this section would explain it; as by it an alteration is made in the number of peremptory challenges allowed to the Crown, reducing them to four.
By section 77 of that Act, it is enacted, that" Any person convicted of any offence punishable by death, may appeal to the Court of Queen's Bench of Manitoba, which shall have jurisdiction to confirm the conviction or to order a new trial, and the mode of such appeal, and all particulars relating thereto, shall be deter mined from time to time by ordinance of the Lieutenant Governor in Council."
This prisoner was arraigned, and pleaded not guilty, and was tried before the said Hugh Richardson, Esquire, a stipendiary magistrate, and Henry Le Jeune, Esquire, a justice of the peace, with the intervention of a jury of six jurymen.
The case was tried upon the plea of not guilty to the charge. The prisoner was defended by able counsel, and all evidence called which he desired. No complaint is now made as to unfairness, haste, or want of opportunity of having all the evidence heard which he desired to have heard,. The jury returned a verdict of guilty, and recommended the prisoner to mercy. Upon this state of circumstances, the case came before the Court of Queen's Bench for Manitoba, by way of appeal, under section 77 of the North West Territories Act, hereinbefore mentioned. It will he observed that the power of this Court upon appeal is limited to the disposition of the case in two ways, via: either, in the words of the statute, "to confirm the conviction, or to order a new trial." We can dispose of it only in one of these two ways.
Upon the argument before this Court no attempt was, or could he, made to show that the prisoner was innocent of the crime charged; in fact, the evidence as to guilt is all one way. The witnesses called upon the defence were so called upon the plea of insanity. The whole evidence was laid before us, and upon examining that evidence think counsel very properly declined lo argue the question of the guilt or innocence of the prisoner.
The argument before us was confined to the constitutionally of the Court in the North West Territory, and to the question of the insanity of the prisoner. As to the question of constitutionality, or jurisdiction, in my opinion the Court before which the prisoner was tried docs sustain its jurisdiction, under and by the Imperial Act 31 & 32 Vic. c. 105, s. 5, being The Rupert's Land Act, 1868, by which power is given to the Parliament of Canada to make, ordain and establish laws, institutions and ordinances, and to constitute such courts and officers as may be necessary for the peace, order, and good government of Her Majesty's subjects therein, meaning Rupert's Land, being the country embraced within that Territory within which this crime was committed. This statute alone confers upon the Dominion Parliament the power both to make laws and establish courts. Secondly, The Dominion Act 32 & 33 Vic., c. 3, intituled "An Act for the temporary government of Rupert's Land and the North West Territories, when united with Canada," passed in pursuance of section 146 of the British North America Act, 1867, by which both Rupert's Land and the North West Territory were declared to be comprehended under the one designation of "The North West Territories." Ample power is there given to make, ordain, and establish laws, institutions and ordinances for the peace, order and good government of Her Majesty's subjects therein j and section 6 of that Act confirms the officers and functionaries in their offices, and in all the powers and duties as before then exercised. This Act, if ultra vires of the Dominion Parliament, at that time, was validated by the Imperial Act 34 & 35 Vic. c. 28, intituled "An Act respecting the establishment of Provinces in the Dominion of Canada," in which the 32 & 33 Vic. c. 3, is in express words made valid, and is declared" to be, and be deemed to have been, valid and effectual for all purposes whatsoever, from the date at which it received the assent (2 2nd of June, 1869), in the Queen's name, of the Governor General of the Dominion of Canada." In my judgment, under both these Acts the Courts in the North West Territories are legally established, and whether the power were a delegated power or a plenary power, appears to me indifferent. The question is asked, could the Dominion Parliament legislate on the subject of treason? That question does not arise, because the Imperial Act validates the Dominion Act, and thus the Act has the full force of an Imperial Act.
The Imperial Act has, by express words, made the Dominion Act "valid and effectual for all purposes whatever from its date," and it thus became in effect an Imperial Act, and has all the effect and force which the Imperial Parliament could give it. The Dominion Parliament thus had power to make the enactment called" The North West Territories Act of 1880," and the prisoner was tried and convicted in accordance with the provisions of this latter Act. Of the regularity of those proceedings no complaint is made except upon one point, which is that the information or charge upon which the prisoner was tried does not show that the information was taken before the stipendiary magistrate and a justice of the peace, and it is contended that this objection is fatal to the form of the information. By section 76 of the N. W. T. Act, the stipendiary magistrate is declared to have the "magisterial and other functions of a justice, or any two justices of the peace. An information could not only have been laid before him, as it in fact was, but could have been laid before, and taken by, a single justice of the peace. But if what is meant by the objection is, that the charge, for that is the word used in that subsection of the statute under which the prisoner was tried, should show on its face that this charge was tried before the stipendiary magistrate and a justice, then it is answered by the fact that he was so tried before the stipendiary magistrate and Henry Le Jeune, a justice of the peace.
The fifth sub-section of the statute thus having been complied with as to the form of the charge, the law is, that inferior courts must show their jurisdiction on the face of their proceedings; but the contrary is the law in the case of superior courts. A court having jurisdiction to try a man for high treason and felonies punishable with death, cannot be called an inferior court; and this court has all the incidents appertaining to a superior court, and is the only court in the North West Territories.
The court constituted under the N. W. T. Act of 1880, being a superior court, need not show jurisdiction on the face of its proceedings. The authorities cited to maintain the position were of inferior jurisdictions and are not applicable.
On 7th May, 1880, the Dominion Government, by the N. W. T. Act, constituted the Court of Queen's Bench of Manitoba a Court of Appeal in respect to offences punishable with death.
It is the prisoner, however, who appeals to us, not the Crown, and he can hardly be heard to object to the jurisdiction to which he appeals.
It is further urged that the stipendiary magistrate did not take, or cause to be taken, in writing, full notes of the evidence and other proceedings upon the trial.
It is true, the evidence produced to us appears to have been taken by a short-hand writer; whether the stipendiary magistrate took, or caused to be taken, other notes in writing after the trial, in pursuance of sub-section 7 of section 76 of the Act, does not appear.
It is the prisoner, for it is his appeal, who furnishes this Court with the evidence upon which the appeal is heard, and the Crown does not object to it.
Unless expressly required by statute, the judge who tries a criminal case is not bound to take down the evidence, and when he is required to do so, it is in order that it may be forwarded to the Minister of Justice. Sub-section five, under which the trial took place, says nothing about the evidence, but simply that the stipendiary magistrate and a justice of the peace, with the intervention of a jury of six, may try any charge, against any person or persons, for any crime.
It is sub-section seven which directs the stipendiary magistrate to take or cause to be taken, in writing, full notes of the evidence and other proceedings thereat; and sub-section eight enacts, that when a person is convicted of a capital offence, and is sentenced to death, the stipendiary magistrate shall forward to the, Minister to Justice full notes of the evidence, with his report upon the case.
Suppose the notes of the evidence were taken by a short-hand reporter, and afterwards extended by him, does not the stipendiary magistrate, in the words of the statute, "cause to be taken in writing full notes of the evidence."
I am of opinion that, for the trial, the stipendiary magistrate is not bound to take down the evidence, but he is bound to do so to forward the same to the Minister of Justice.
In my opinion there is no departure from the directions of the statute. He does cause them to be taken. The direction, first to take them by short-hand, and then to extend them by writing, is all one direction, or causing to be taken. This seems to me a reasonable compliance with the requirements of sub-section Seven. Is it not too rigid a reading of the statute to say that the writing must be done whilst the trial progresses. Sub-section eight dues not say a copy shall be sent to the Minister of Justice, but, full notes of the evidence shall be sent to the Minister of Justice. Suppose the notes of the evidence were burned by accident? Would the prisoner be denied his appeal?
The Crown has not objected to the evidence as furnished by the prisoner. The exception is purely technical, and in my opinion is not a valid one.
A good deal has been said about the jury being composed of six only. There is no law which says that a jury shall invariably consist of twelve, or of any particular number. In Manitoba, in civil cases, the jury is composed of twelve, but nine can find a verdict. In the North West Territories Act, the Act itself declares that the jury shall consist of six, and this was the number of the jury in this instance. Would the stipendiary magistrate have been justified in impannelling twelve, when the statute directs him to impannel six only?
It was further complained that this power of life and death was too great to be entrusted to a stipendiary magistrate.
What are the safeguards?
The stipendiary magistrate must be a barrister of at least five years standing. There must be associated with him a justice of the peace, and a jury of six. The court must be an open public court. The prisoner is allowed to make full answer and defence by counsel.
Section 77 permits him to appeal to the Court of Queen's Bench in Manitoba, when the evidence is produced, and he is again heard by counsel, and three judges re-consider his case. Again, the evidence taken by the stipendiary magistrate, or that caused to be taken by him, must, before the sentence is carried into effect, be forwarded to the Minister of Justice; and sub-section eight requires the stipendiary magistrate to postpone the execution, from time to time, until such report is received, and the pleasure of the Governor thereon is communicated to the lieutenant Governor. Thus, before sentence is carried out, the prisoner is heard twice in court, through counsel, and his case must have been considered in Council, and the pleasure of the Governor thereon communicated to the Lieutenant Governor.
It seems to me the law is not open to the charge of unduly or hastily confiding the power in the tribunals before which the prisoner has been heard. The sentence, when the prisoner appeals, cannot be carried into effect until his case has been three times heard, in the manner above stated.
Counsel then rest the prisoner's case upon the ground of insanity, and it is upon this latter point only that the prisoner called witnesses.
The jury by their finding have negatived this ground, and the prisoner can only ask, before us, for a new trial we have no other power of which he can avail himself. The rule at law in civil cases is, that the evidence against the verdict must greatly preponderate before a verdict will be set aside; and in criminal cases in Ontario, whilst the law (now repealed) allowed applications for new trials, the rule was more stringent a verdict in a criminal case would not be set aside if there was evidence to go to the jury, and the judge would not express any opinion upon it if there was evidence to go to the jury, if their verdict could not be declared wrong. I have carefully read the evidence, and it appears to me that the jury could not reasonably have come to any other conclusion than the verdict of guilty; there is not only evidence to support the verdict, but it vastly preponderates.
It is said the prisoner labored under the insane delusion that he was a prophet, and that he had a mission to fulfill. When did this mania first seize him, or when did it manifest itself? Shortly before he came to Saskatchewan he had been teaching school in Montana. It was not this mania that impelled him to commence the work which ended in the charge at Batoche. He was invited by a deputation, who went for him to Montana. The original idea was not his - did not originate with him. It is argued, however, that his demeanor changed in March, just before the outbreak. Before then he had been holding meetings, addressing audiences, and acting as a sane person. His correspondence with General (now Sir Frederick) Middleton betokens no signs of either weakness of intellect or of delusions. Taking the definitions of this disease, as given by the experts, and how does his conduct comport therewith. The maniac imagines his delusions real, they are fixed and determinate, the bare contradiction causes irritability.
The first witness called by the prisoner, the Rev. Father Alexis Andre,
in his cross-examination says as follows :-
Q. Will you please state what the prisoner asked of the Federal Government?
A. I had two interviews with the prisoner on that subject.
Q. The prisoner claimed a certain indemnity from the Federal Government. Didn't he?
A. When the prisoner made his claim, I was there with another gentleman, and he asked $100,000. We thought that was exorbitant, and the prisoner said, "Wait a little, I will take at once $35,000 cash."
Q. Is it not true the prisoner told you he himself was the half-breed question?
A. He did not say so in express terms, but he conveyed that idea. He said, "If I am satisfied the half-breeds will be." The witness continues: I must explain this. This objection was made to him, that even if the Government granted him the $35,000, the half-breed question would remain the same; and he said, in answer to that, "If I am satisfied, the half-breeds will be."
Q. Is it not a fact he told you he would even accept a less sum than the $35,000?
A. Yes; he said, "Use all the influence you can, you may not get all that, but get all you can, and if you get less, we will sec." This was the cross-examination of a witness called by the prisoner.
To General Middleton, after prisoner's arrest, he speaks of his desire to negotiate for a money consideration.
In my opinion, this shows he was willing and quite capable of parting with this supposed delusion, if he got the $35,000.
A delusion must be fixed, acted upon, and believed in as real, overcome and dominate in the mind of the insane person. An insanity which can be put on or off at the will of the insane person, according to the medical testimony, is not insanity at all in the sense of mania.
Dr. Roy testified to his having been confined in the Beauport Asylum at Quebec, from which he was discharged in January, 1878. His evidence was so unsatisfactory, the answers not readily given, and his account of prisoner's insanity was given with so much hesitation, that I think the jury were justified in not placing any great reliance upon it.
Dr. Clarke, of the Toronto Asylum, as an expert, was not sufficiently positive to enable anyone to form a definite opinion upon the question of the sanity of the prisoner.
Dr. Wallace, of the Hamilton Asylum; Dr. Jukes, the medical officer, who attended the prisoner from his arrival at Regina; General Middleton, and Captain Young these all failed to find insanity in his conduct or conversation. Neither could the Rev. Mr. Pitblado, who had a good opportunity of conversing with him.
In my opinion, the evidence against his insanity very greatly preponderates. Besides, it is not every degree of insanity or mania that will justify his being acquitted on that ground. The rule in that respect is most satisfactorily laid down in the McNaghten case, 10 Cl. & Fin. 200. Notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing some supposed grievances or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed. If he knew at the time of committing such crime that he was acting contrary to law.
I think the evidence upon the question of insanity shows that the prisoner did know that he was acting illegally, and that he was responsible for his acts.
In my opinion, a new trial should be refused, and the conviction confirmed.
TAYLOR, J. This is an appeal brought under the provisions of section 77 of the North West Territories Act, 1880, Dom. Stat. 43 Vic., c. 25, by Louis Riel, from a judgment rendered against him at Regina, in the North West Territories.
On the 20th day of July last the appellant was charged before H ugh Richardson, Esq., Stipendiary Magistrate, and Henry Le Jeune, Esq., a Justice of the Peace, sitting as a Court under the provisions of section 76 of the above-mentioned statute, with the crime of treason. After a plea by the appellant to the jurisdiction of the Court, and a demurrer to the sufficiency in law of the charge or indictment, had both been overruled, the appellant pleaded not guilty. The trial was then, upon his application, adjourned for some days to procure the attendance of witnesses on his behalf. On the 28th of July the trial was proceeded with, and a large number of witnesses were called and examined. At the trial the appellant was defended by three gentlemen of high standing at the bar of the Province of Quebec. Judging from the arguments addressed to this Court by two of these gentlemen on the present appeal, I have no hesitation in speaking of them as learned, able and zealous, fully competent to render to the appellant all the assistance in the power of counsel to afford him. On the 1st of August, the case having been left to the jury, they returned a verdict of guilty, and thereupon sentence of death was pronounced. From that he brings his appeal.
It was not urged before this Court, as it was on the trial at Regina, that the appellant should have been sent for trial to the Province of Ontario, or to the Province of British Columbia, instead of his being brought to trial before a stipendiary magistrate and a justice of the peace in the North West Territories.
This point not having been argued, it is unnecessary to consider whether the Imperial Acts 43 Geo. III., e. 138; 1 & 2 Geo. IV., c. 66, and 22 & 23 Vic. c. 26, are, or are not now in force. Only a passing allusion was made to them by counsel. The first of them was repealed by the Statute Law Revision Act, 1872 (35 & 36 Vic. c. 63), and part of the second was repealed by the Statute Law Revision Act, 1874 (37 & 38 Vic. c. 35). At all events, the Imperial Government has never, under the authority of these, appointed in the North West Territories justices of the peace, nor established courts, while under other statutes hereafter referred to, wholly different provision has been made for dealing with crime in those Territories, so that they must be treated as obsolete if not repealed.
It was contended by the appellant's counsel that the Imperial statutes relating to treason, the 25 Edw. III., c. 2; 7 Wm. III., c. 3; 36 Geo. III, c. 7, and 57 Geo. III., c. 6, which define what is treason, and provide the mode in which it is to be tried, including the qualification of jurors, their number, and the method of choosing them, are in force in the North West Territories. And it was argued, that in legislating for the North West Territories, the people of which are not represented in the Dominion Parliament, that Parliament exercises only a delegated power, which must be strictly construed, and cannot be exercised to deprive the people there of rights secured to them as British subjects by Magna Charta, or in any way alter these old statutes to their prejudice. Now of this argument against any change being made in rights and privileges secured by old charters and statutes, a great deal too much may be made.
That these rights and privileges, wrested by the people from tyrannical sovereigns many centuries ago, were and are valuable, there can be no question. Were the sovereign at the present day endeavouring to deprive the people of any of these, for the purposes of oppression, it would speedily be found that the love of liberty is as strong in the hearts of British subjects today as it was in the hearts of their forefathers, and they would do their utmost to uphold and defend rights and privileges purchased by the blood of their ancestors. But it is a very different thing when the legislature, composed of representatives of the people, chosen by them to express their will, deem it expedient to make a change in the law, even though that change may be the surrender of some of these old rights and privileges.
That the Dominion Parliament represents the people of the North West Territories cannot, I think, be successfully disputed. It may be, that the inhabitants of these Territories are not represented in parliament by members sitting there chosen directly by them, but these Territories form part of the Dominion of Canada, the people in them are citizens of Canada, not, as it was put by counsel, neighbours, just in the same way as all the people of this Dominion are part and parcel of the great British Empire. The people of these Territories are represented by the Dominion Parliament, just as the inhabitants of all the colonies are represented by the House of Commons of England. Legislation for these Territories by the Dominion Parliament, must indeed precede their being directly represented there. Before they can be so, the number of representatives they are to have, the qualification of electors, and other matters must be provided for by the Dominion Parliament itself or by Local Legislatures created by that Parliament.
The question then is, what powers of legislation with reference to the North West Territories have been conferred upon the Dominion Parliament by Imperial authority. In the exercise of that authority, whatever it may be, it is not exercising a delegated authority.
To found an argument as to Parliament exercising a delegated authority, upon the language used by American writers, or upon judicial decisions in the United States, appears to me to be wholly fallacious. In the States of the American Union the theory is, that the sovereign power is vested ill the people, and they, by the Constitution of the State, establishing a legislature, delegate to that body certain powers, a limited portion of the sovereign power which is vested in the people. The people, however, still retain certain common law rights, the authority to deal with which they have not delegated to the legislative body. Hence the language used by Bronson,]., in Taylor v. Porter, 4 Hill, at p. 144," Under our form of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the wholly body of the people. Like other departments of the government it can only exercise such powers as have been delegated to it." It is in the light of this theory that the language of Mr. Justice Story in Wilkinson v. Leland, 2 Peters, 627, must be read and by which it must be construed. The case of the British Parliament is quite different, "in which," as Blackstone says (Blackstone, Christian's Ed., Vol. 1., p. 147, "the legislative power and (of course) the supreme and absolute authority of the State, is vested by our constitution." And again, at p. 160, he says, "It hath sovereign and uncontrollable authority in the making, conferring, enlarging, restraining, abrogating, repealing, revising and expounding of laws, concerning matters of all possible denominations * * * * this being the place where that absolute despotic power which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms."
To the extent of the powers conferred upon it, the Dominion Parliament exercises not delegated but plenary powers of legislation, though it cannot do anything beyond the limits which circumscribe these powers. When acting within them, as was said by Lord Selborne in The Queen v. Burah, L. R. 3 App. Ca., at p. 9 4, speaking of the Indian Council, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature as those of that Parliament itself. That the Dominion Parliament has plenary powers of legislation in respect of all matters entrusted to it was held by the Supreme Court in Valin v. Langlois, 3 Sup. C. R. I. and City of Fredericton v. The Queen, 3 Sup. C. R. 5 S. So also, the Judicial Committee of the Privy Council have held, in Hodge v. The Queen, L. R. 9 App. Ca. 117, that the Local Legislatures when legislating upon matters within section 92 of the British North America Act, possess authority as plenary and as ample, within the limits prescribed by that section, as the Imperial Parliament in the plenitude of its power possessed and could bestow,
The power of the Dominion Parliament to legislate for the :North West Territories seems to me to be derived in this wise, and to extend thus far. By section 146 of the British North America Act it was provided, that it should be lawful for Her Majesty, with the advice of Her Privy Council, "on address from the Houses of the Parliament of Canada, to admit Rupert's Land and the North Western Territory, or either of them, into the Union, on such terms and conditions in each case as are in the addresses expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland."
In 1867, the Dominion Parliament presented an address praying that Her Majesty would be pleased to unite Rupert's Land and the North Western Territory with the Dominion, and to grant to the Parliament of Canada authority to legislate for their future welfare and good government. The address also stated, that in the event of Her Majesty's Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada would be ready to provide that the legal rights of any corporation, company or individual within the same should be respected and placed under the protection of courts of competent jurisdiction.
The following year, 1868, the Rupert's Land Act, 31 & 32 Vic., c. 15, was passed by the Imperial Parliament. For the purposes of the Act the term Rupert's Land is declared to include the whole of the lands and territories held, or claimed to be held, by the Governor and Company of Adventurers of England trading into Hudson's Bay. The Act then provides for a surrender by the Hudson's Bay Company to Her Majesty of all their lands, rights, privileges, &c., within Rupert's Land, and provides that the surrender shall be null and void unless within a month after its acceptance Her Majesty shall, by order in Council, under the provisions of section 146 of the British North America Act, admit Rupert's Land into the Dominion. The fifth section provides that it shall be competent for Her Majesty, by any Order in Council, to declare that Rupert's Land shall be admitted into and become part of the Dominion of Canada; "and thereupon it shall be lawful for the Parliament of Canada, from the date aforesaid, to make, ordain, and establish within the land and territory so admitted as aforesaid, institutions, and ordinances, and to constitute such courts and officers as may be necessary for the peace, order, and good government of Her Majesty's subjects and others therein."
In 1869, a second address was presented, embodying certain resolutions and terms of agreement come to between Canada and the Hudson's Bay Company, and praying that Her Majesty would be pleased to unite Rupert's Land on the terms and conditions expressed in the foregoing resolutions, and also to unite the North Western Territory with the Dominion of Canada, as prayed for, by and on the terms and conditions contained in the first address. The same year the Dominion Parliament passed an Act, 32 & 33 Vic. c. 3, for the temporary government of Rupert's Land and the North Western Territory, when united with Canada, which was to continue in force until the end of the next session of Parliament.
The following year, 1870, another Act was passed, 33 Vic., c. 3, which amended and continued the former Act, and which formed out of the North West Territory this Province of Manitoba. The last section of this act re?enacted, extended, and continued in force the 32 & 33 Vic. c. 3 until the 1st day of January, 1871, and until the end of the session of Parliament then next ensuing.
On the 23rd of June, 1870, Her Majesty by Order in Council, after reciting the addresses presented by the Parliament of Canada, ordered and declared" that from and after the 15th day of July, 1870, the North Western Territory shall be admitted into, and become part of, the Dominion of Canada, upon the terms and conditions set forth in the first hereinbefore recited address, and that the Parliament of Canada shall, from the day aforesaid, have full power and authority to legislate for the future welfare and good government of the said territory."
By virtue of that Order in Council and of the 31 & 32 Vic. c. 105, it seems to me, that on the 15th of July, 1870, the Parliament of Canada became entitled to legislate and to make, ordain and establish within the North West Territories all such laws, institutions, and ordinances, civil and criminal, and to establish such courts, civil and criminal, as might be necessary for peace, order, and good government therein. The language used is even wider than is used in the 91st section of the British North America Act, which defines the legislative authority of the Parliament of Canada, extending by sub?section 27 to the criminal Jaw; while there is not as there the restriction, " except the constitution of courts of criminal jurisdiction," but on the contrary express authority to constitute courts without any limitation.
That by that Order in Council and Act the authority thereby given extends over that part of the North West Territory where the events occurred out of which the charge against the appellant arose, there can be no doubt. By the terms of the agreement between Canada and the Hudson's Bay Company, the latter were to retain certain lands, and in a schedule annexed to the Order in Council the exact localities are mentioned. In the Saskatchewan District the names Edmonton, Fort Pitt, Carlton House, and other places appear.
It is true that in 1871, another Act was passed by the Imperial Parliament, the 34 & 35 Vic. c. 28, spoken of by Mr. Fitzpatrick as "The Doubts Removing Act," but I cannot come to the conclusion which he seeks to draw from that fact, and from its confirming two Acts of the Canadian Parliament, that the former Act, 31 & 32 Vic. c. 15, did not give the Dominion Parliament full power to legislate for the North West Territory. The former Act provided for the admission of Rupert's Land and the North Western Territory into the Dominion, but was silent as to the division of the Territory so admitted, into Provinces, or as to their representation in parliament. That it was doubts on these matters which the Act was intended to remove is shown by the preamble. It is in these words, " Whereas doubts have been entertained respecting the powers of the Parliament of Canada to establish Provinces in Territories admitted, or which .may hereafter be admitted into the Dominion of Canada, and to provide for the representation of such Provinces in the said Parliament; and it is expedient to remove such doubts and to vest such powers in the said Parliament." The second and third sections then provide for the establishment of Provinces, for, in certain cases, the alteration of their limits, and for their representation in Parliament. The fourth section, in general terms, says, " 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; " a power which Parliament already had in the most ample manner. Then follows a confirmation of the Canadian Acts 32 & 33 Vic. c. 3, and 33 Vic. c. 3. That the Act should contain such a confirmation is easily accounted for. The Imperial Act 31 & 32 Vic. c. 105, s. 5, provided that it should be competent for Her Majesty, by Order in Council, "to declare that Rupert's Land shall, from a date to be therein mentioned, be admitted," &c., and" thereupon it it shall be lawful for the Parliament of Canada, from the date aforesaid," to make laws, &c.
The Order in Council was made on the 23rd of June, 1870, and the date therein mentioned was the 15th of July, 187 . Now, a reference to the two Canadian Acts shows, that the 32nd and 33rd Vic. c. 3, was assented to on the 22nd of June, 1869, and the 33rd Vic. c. 3, on the 12th of May, 187 . So, in fact, they were both passed before the time arrived at which the Parliament of Canada had the right to legislate respecting the North West. But they had been acted upon, and the Province of Manitoba actually organized, therefore they were confirmed and declared valid from the date at which they received the assent of the Governor General.
Acting under the authority given in the most ample manner by these Acts of the Imperial Parliament, and, as it seems to me, in the exercise not of a delegated authority, but of plenary powers of legislation, the Dominion Parliament enacted the North West Territories Act, 1880 (43 Vic. c. 25) which provides, among other things, for the trial of offences committed in these Territories in the manner there pointed out.
The appointment of stipendiary magistrates, who must be barristers-at-law or advocates of five years' standing, is provided for by the 74th section.
By the 76th section, each stipendiary magistrate shall have power to hear and determine any charge against any person for any criminal offence alleged to have been committed within certain specified territorial limits. These words are quite wide enough to include the crime of treason. The various subsections of section 76 provide for the mode .of trial in certain classes of offences. Those specified in the first four subsections are to be tried by the stipendiary magistrate in a summary way without the intervention of a jury. Then the 5th subsection says, "In all other criminal cases the stipendiary magistrate and a justice of the peace, with the intervention of a jury of six, may try any charge against any person or persons for any crime." Again the words are quite wide enough to cover the crime of treason.
Counsel for the appellant contended that from the word treason being used in the 10th sub-section, and no where else in the Act, it must be inferred that the Act did not intend to deal with the crime of treason, except in the matter of challenging jurors, which is dealt with in that subsection. The suggestion made by Mr. Robinson is, however, the more reasonable one, namely, that treason is there named advisedly, to put beyond doubt, there being only 36 jurors summoned, that a prisoner charged with that particular crime should not be entitled to exercise the old common law right, which a prisoner charged with treason had, of challenging, peremptorily and without cause, thirty-five jurors.
The question must next be considered, whether the proceedings against the appellant have been conducted according to the requirements of this Act.
The record before the Court shows that the trial took place before a stipendiary magistrate and a justice of the peace, with a jury of six elected and sworn after the appellant had exercised his right of challenging several jurors.
Two objections to the regularity of the proceedings are, how-ever, raised. The first of these is, that the information upon which the appellant was charged was exhibited before the stipendiary magistrate alone, and not before the stipendiary magistrate and a justice of the peace. An inspection of the document shows the fact to be so. But is it necessary that the information should be exhibited before both?
The powers and jurisdiction of stipendiary magistrates are set out in section 76 of the North West Territories Act, 1880.
The first part of the section says, each stipendiary magistrate shall have the magisterial and other functions appertaining to any justice of the peace, or any two justices of the peace, under any laws or ordinances which may from time to time be in force in the North West Territories. That is a distinct proposition. By the schedule annexed to the Act one of the laws in force there is the 32 & 33 Vic. c. 3 . Under the 1st section of that Act it is clear that a charge or complaint that any person has committed, or is suspected to have committed treason, may be exhibited before one justice of the peace, and a warrant for his apprehension issued by such justice.
Section 76 then goes on further, that each stipendiary magistrate "shall also have power to hear and determine any charge against any person for any criminal offence", &c. In all other criminal cases than those specified in the first four subsections he and a justice of the peace, with the intervention of a jury of six, may try the charge. It is only when the charge comes to be tried that the presence of a justice of the peace along with him is necessary. To hold that the words" try any charge" include the exhibiting of the information, or that it must be so, before both a stipendiary magistrate and a justice of the peace, seems to me to involve the holding also, that for the purpose of exhibiting the information there is also necessary the intervention of a jury of six. Now the jury cannot be called into existence until the charge has been made, the accused arraigned upon it, and he has pleaded to it.
The case of Reg v. Russell, 13 Q. B. 237, was cited in support of this objection, but, as I read that case, it is a direct authority against it. An information was exhibited under the Act for the General Regulation of the Customs, before a single justice, and was dismissed by the justices before whom the charge was brought for trial, on the ground that it should have been exhibited before two justices, in conformity with section 82 of the Act for the Prevention of Smuggling. That section provided that all penalties and forfeitures incurred or imposed by any Act relating to the customs should and might be " sued for, prosecuted, and recovered by action of debt, bill, plaint, or information in any of Her Majesty's Courts of Record," &c., "or by information before any two or more of Her Majesty's Justices of the Peace," &c. A rule calling on the justices to show cause why a mandamus should not issue commanding them to proceed to adjudicate upon the information, was obtained. Upon the return of the rule, counsel for the justices contended, that the provision that the penalty may be " sued for," by information, must refer to the commencement of the proceeding, in like manner as in the provision that it may be "sued for" by action. But the Court made the rule for a mandamus absolute, Lord Denman, C. J., who delivered the judgment of the court, saying, " The 82nd section of the Act does not necessarily mean that the information must be laid before two justices, but only that it must be heard before two justices."
The next objection is, that at the trial full notes of the evidence and proceedings thereat, in writing, were not taken, as required by the Statute, section 76, sub-section 7. What was actually done, as it is admitted on. both sides, was, that the evidence and a record of the proceedings were taken down at the time by stenographers appointed by the magistrate, and they afterwards extended their notes.
The objection cannot be, that the magistrate did not himself take notes of the evidence and proceedings, for the statute says he shall" take, or cause to be taken," full notes, &c. It must be that the notes were taken by stenographic signs or symbols.
No doubt, enactments regulating the procedure in courts seem usually to be imperative, and not merely directory. Maxwell on Statutes, 456; Taylor v. Taylor, L. R. I Ch. Div. at p. 43I. But the force of the objection depends upon what is meant by the word" writing," In proceeding to consider it, I am not conscious of being in any way prejudiced, from the circumstance that I am myself a stenographer. The statute does not specify any method or form of writing, as that which is to be adopted. "Writing" is, in the Imperial Dictionary, said to be "The act or art of forming letters or characters, on paper, parchment, wood, stone, the inner bark of certain trees, or other material, for the purpose of recording the ideas which characters and words express, or of communicating them to others by visible signs." In the same work, "to write," is defined thus, "To produce, form or make by tracing, legible characters expressive of ideas." Is not stenographic writing the production of " legible characters expressive of ideas"? The word is formed from two Greek words, "otevoc" and" tpayo", and means simply" close writing. "If the objection is a good one, it must go the length of insisting that the notes must be taken down in ordinary English characters, in words at full length. If any contractions or abbreviations were made, the objection would have quite as much force as it has to the method adopted in this case.
Re Stanbro, I Man. L. R. 325, was an entirely different case. It was one under the Extradition Act, and the evidence was taken in short-hand, as is usual on a trial. The Court held, that the reporter's notes extended, which were produced before it, on the argument on the return of a writ of habeas corpus obtained by the prisoner, could not be looked at, and that there was really no evidence. But the Court so held, because the provisions of the 32nd & 33rd Vic. c. 3 , s. 39, were applicable to the mode in which the evidence should be taken in extradition proceedings. That section requires the depositions to be put in writing, read over to the witness, signed by him, and also signed by the justice taking the same. The depositions in the case in question bad not been read over to the witnesses, nor signed by them; nor were they signed by the judge who took them, so that clearly the requirements of the Act had not been complied with.
In addition to the objections already dealt with, it was argued that the appellant is entitled to a new trial, on the ground that the evidence adduced proved his insanity, and that the jury should have so found, and therefore rendered a verdict of not guilty.
The section of the statute which gives an appeal, says, in general terms, that any person convicted may appeal, without saying upon what grounds; so there can be no doubt the one thus taken is open to the appellant. The question, however, arises, how should the Court deal with an appeal upon matters of evidence? We have no precedents in our own court, but the decisions in Ontario during the time when the Act respecting new trials and appeals, and writs of error in criminal cases, in Upper Canada (Con. Stat. U. C. c. 113) was in force there, may be referred to as guides. By the first section of that Act, any person convicted of any treason, felony, or misdemeanor, might apply for a new trial upon any point of law, or question of fact, in a sample a manner as in a civil action.
The decisions under the Act are uniform and consistent, and a few of them may be referred to.
The earliest case upon the point, and perhaps the leading case, is Reg. v. Chubbs, 14 U. C. C. P. 32, in which the prisoner had been convicted of a capital offence. In giving judgment, Wilson, J., said, "In passing the Act, giving the right to the accused to move for, and the Court to grant, a new trial, I do not see that it was intended to give courts the power to say that a verdict is wrong, because the jury arrived at conclusions which there was evidence to warrant, although from the same state of facts, other and different conclusions might fairly have been drawn, and a contrary verdict honestly given." Richards, C. J., before whom the case had been tried, said, "If I had been on the jury, I do not think I should have arrived at the same conclusions, but as the law casts upon them the responsibility of deciding how far they will give credit to the witnesses brought before them, I do not think we are justified in reversing their decision, unless we can be certain that it is wrong."
In Reg. v. Greenwood, 23 U. C. Q. B. 255, a case in which the prisoner had been convicted of murder, Hagarty, J., said, " I consider that I discharge my duty as a judge before whom it is sought to obtain a new trial on the ground of the alleged weakness of the evidence, or of its weight in either scale, in declaring my opinion that there was evidence proper to be submitted to the jury; that a number of material facts and circumstances were alleged properly before them links as it were in a chain of circumstantial evidence which it was their especial duty and province to examine carefully, to test their weight and adaptability each to the other * * * * To adopt any other view of the law, would be simply to transfer the conclusion of every prisoner's guilt or innocence from the jury to the judges. "
Reg. v. Hamilton, 16 U. C. C. P. 340, was also a case in which the prisoner had been convicted of murder. Richards, C. J., who delivered the judgment of the court, said, "We are not justified in setting aside the verdict, unless we can say the jury were wrong in the conclusion they have arrived at. It is not sufficient that we would not have pronounced the same verdict; before we interfere we must be satisfied they have arrived at an erroneous conclusion." So, in Reg. v. Seddons, 16 U. C. C. P. 389, it was said, "The verdict is not perverse, nor against law and evidence; and although it may be somewhat against the judge's charge, that is no reason for interfering, if there be evidence to sustain the finding, because the jury are to judge of the sufficiency and weight of the evidence."
In Reg. v. Slavin, 17 U. C. C. P. 2 5, the law on the subject was thus stated, "We do not profess to have scanned the evidence with the view of saying whether the jury might or might not, fairly considering it, have rendered a verdict of acquittal. We have already declared on several occasions that this is not our province under the statute. It is sufficient for us to say that there was evidence which warranted their finding."
The learned counsel for the appellant have argued with great force and ability' that the overwhelming weight of the evidence is to establish his insanity. Under the authorities cited, all that my duty requires me to do is to see if there is any evidence to support the finding of the jury, which implies the appellant's sanity. I have, however, read carefully the evidence, not merely that of the experts, and what bears specially upon this point, but the general evidence. It seemed to me proper to do so, because it is only after acquiring a knowledge of the appellant's conduct and actions throughout, that the value of the expert evidence can be properly estimated.
After a critical examination of the evidence, I find it impossible to come to any other conclusion than that at which the jury arrived. The appellant is, beyond all doubt, a man of inordinate vanity, excitable, irritable, and impatient of contradiction. He seems to have at times acted in an extraordinary manner; to have said many strange things, and to have entertained, or at least professed to entertain, absurd views on religious and political subjects. But it all stops far short of establishing such unsoundness of mind as would render him irresponsible, not accountable for his actions. His course of conduct indeed shows, in many ways, that the whole of his apparently extraordinary conduct, his claims to divine inspiration, and the prophetic character, was only part of a cunningly devised scheme to gain, and hold, influence and power over the simple minded people around him, and to secure personal immunity in the event of his ever being called to account for his actions. He seems to have had in view, while professing to champion the interests of the Metis, the securing of pecuniary advantage for himself. This is evident from, among other circumstances, the conversation detailed by the Rev. Mr. Andre. That gentleman, after he had spoken of the appellant claiming that he should receive from the Government $100,000, but would be willing to take at once $35,000 cash, was asked, "Is it not true that the prisoner told you that he himself was the half-breed question." His reply is, "He did not say so in express terms, but he conveyed that idea. He said, if I 'am satisfied, the half-breeds will be. I must explain this. This objection was made to him, that even if the Government granted him $35,000, the half-breed question would remain the same, and he said in answer to that, if I am satisfied, the half-breeds will be."
He also says, that the priests met and put the question, "is it possible to allow Riel to continue in his religious duties, and they unanimously decided that on this question he was not responsible that he was completely a fool on this question that he could not suffer any contradiction. On the questions of religion and politics we considered that he was completely a fool. There is nothing in all that which would justify the conclusion that the man so spoken of was not responsible in the eye of the law for his actions. Many people are impatient of contradiction, or of authority being exercised over them, yet they cannot on that account secure protection from the consequences of their acts as being of unsound mind.
The Rev. Mr. Fourmond, who was one of the clergy who met for the purpose spoken of by the Rev. Mr. Andre, shows that the conclusion they came to, was come to, because they thought it the more charitable one. Rather than say he was a great criminal, they would say he was insane. The views the appellant professed respecting the Trinity, the Holy Spirit, the Virgin Mary, the authority of the clergy, and other matters were what shocked these gentlemen. But heresy is not insanity, at least in the legal and medical sense of the term.
The most positive evidence as to insanity is given by Mr. Roy, the Medical Superintendent of Beauport Asylum, in which appellant resided for nineteen months about ten years ago. But his evidence is given in such an unsatisfactory way, so vaguely, and with such an evident effort to avoid answering plain and direct questions, as to render it to my mind exceedingly unreliable. The other medical witness who speaks to his insanity is Dr. Clark, of the Toronto Asylum. He says, " The prisoner is certainly of insane mind," but he qualifies that opinion by prefacing it with the statement, "assuming that he was not a malingerer." And even he says, "I think he was quite capable of distinguishing right from wrong." Against the evidence of these gentlemen there is that of Dr. Wallace, of the Hamilton Asylum, and Dr. Jukes, the senior surgeon of the Mounted Police Force, both of whom are quite positive in giving opinions of the appellant's sanity.
It was contended that the very fact that he, a man who had seen the world, could ever hope to succeed in a rebellion, and contend successfully with the force of the Dominion, backed as that would be, in case of need, by all the power of England, was in itself conclusive proof of insanity. But the evidence of several witnesses, specially of Captain Young, shows that he never had any idea of entering seriously into such a contest. The appellant told that witness that he was not so foolish as to imagine that he could wage war against Canada and Britain. His plan, as he detailed it, was to try and capture at Duck Lake, Major Crozier and his force of police, and then, holding them as hostages, compel the government to accede to his demands. What these were he had already told the Rev. Mr. Andre- $100,000, or in cash $35,000, and if he could not get even that, then as much as he could. Having failed to capture Major Crozier, he hoped to draw into a snare General Middleton and a small force, in order to hold them as hostages for a like purpose. The fighting which actually took place was not the means by which he had hoped to secure his ends. The Rev. Mr. Pitblado gives evidence similar to that of Captain Young.
Certainly the evidence entirely fails to relieve the appellant from responsibility for his conduct, if the rule laid down by the Judges in reply to a question put to them by the House of Lords, in MacNaghten's Case, 10 Cl. & Fin. 200, be the sound one. That rule was thus expressed, "Notwithstanding the party accused did the act complained of, with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we mean, the law of the land." This has, I believe, ever since it was laid down, been regarded as the sound and correct rule of law on this subject.
In my judgment a new trial must be refused, and the conviction affirmed.
KILLAM, J.-I concur fully in the conclusions of my brother judges and in the reasons supporting the same, with the exception, perhaps, of holding somewhat different opinions from some of those expressed by the Chief Justice as to the effect of the sub- section of the 76th section of the North West Territories Act, requiring full notes of the evidence to be taken upon the trial, and as to the form of the charge in question. Were it not for the importance of the case, and that a mere formal concurrence in the judgments of the other members of the Court might appear to arise to some extent from some disinclination to consider fully and to discuss the important questions that have been raised, I should rather have felt inclined to say merely that I agree with the opinions which those judgments express.
What I shall add has been written after having had a general idea of the views of my brother judges, but principally before I had an opportunity of perusing the full expression of their views, and with a desire to present some views upon which they might not touch, rather than with the idea that their opinions required to be differently expressed.
I need not recapitulate the facts of the case or the proceedings taken, and I will refer to the statutes less fully than if I were delivering the sole judgment of the Court.
The prisoner first pleaded to the jurisdiction of the Court before which he was arraigned, and to this plea counsel for the Crown demurred. The decision of the Court allowing the demurrer forms one of the grounds of this appeal. The judgment on this demurrer appears to have been based upon the decision of this Court in Easter Term last, in the case of Regina v. Connor, in which the prisoner appealed against a conviction for murder by a court constituted exactly as in the present instance. I was not present upon the hearing of the appeal in that case, and judge of the points raised only from the report in the MANITOBA LAW REPORTS. From that report it does not appear that the jurisdiction of the Court was so much objected to as the mode in which the prisoner was charged with the offence, it being contended that he should be tried only upon an indictment found by a grand jury or, a charge made upon a coroner's inquest. It seems, notwithstanding that decision, still to be open to the prisoner to question the power of Parliament to establish the Court for the trial of the offence charged against him. I mean that the point is not yet res judicata so far as this Court is concerned. Even if it were so, in the event of any new argument of importance being adduced by the present or any other appellant, it would be quite competent for this Court, though not for the Court below, to reconsider the decision.
The authority of the Parliament of Canada to institute such a Court, and particularly to do so for the trial of a person upon a charge of high treason, is now denied; and it is also contended for the prisoner that the statute was not intended to provide for the trial of a charge of that nature. It: has been argued that the powers of the Canadian Parliament are delegated to it by the Imperial Parliament, and that they must be considered to have been given subject to the rights guaranteed to British subjects by the Common Law of England, Magna Charta, the Bill of Rights, and many statutes enacted by the Imperial Parliament, among which rights are claimed to be the right of a party accused of crime to a trial by a jury of twelve of his peers, who must all agree in their verdict before he can be convicted, and the right of a party accused of high treason to certain safeguards provided in connection with the procedure upon his trial. It is also argued that high treason is a crime sui generis; that it is an offence against the sovereign authority of the state; and that it must be presumed, notwithstanding the provisions of the British North America Acts and the other Acts giving the Parliament of Canada authority in the North West Territories, that the Imperial Parliament still reserved the right to make laws respecting high treason and the mode of trial for that offence; and also that the provisions of the Act 43 Vic. c. 25, s. 76, are inconsistent with enactments of the Imperial Parliament, and therefore inoperative. There can be no doubt that the Imperial Parliament has full power to legislate away any of the rights claimed within Great Britain and Ireland. Its position is not in any way analogous to that of the Legislatures, either State or Federal, under the Constitution of the United States, and the American authorities cited by counsel for the prisoner can have no application. There is no power under the British Constitution to question the authority of Parliament. It may yet have to be considered whether it has so effectually given up its powers of legislation in regard to the internal affairs of Canada, by the British North America Acts and some other statutes, that it cannot resume them; whether, in case of a conflict between the Parliament of Canada and the Imperial Parliament, the Courts of Canada are bound by the enactments of the one or the other; but these are questions which need not now be decided. It is true that the Parliament of Canada is the creature of statute, and that its powers cannot be greater than the statutes expressly or impliedly bestow upon it, but there has been no attempt by the Imperial Parliament to take away or to encroach upon the powers given to the Parliament of Canada, and we have nothing to do at present with speculations upon the effect of such an attempt. The British North America Act, 1867, begins with the recital that the Provinces of Canada, Nova Scotia and New Brunswick" have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom." By section 9 the executive government and authority of and over Canada are declared to be vested in the Queen. Under section 17 there is " one Parliament" for Canada, consisting of the Queen, an Upper Housestyled the Senate?and the House of Commons. By section 18 the privileges, immunities and powers of the Senate and House of Commons are to be such as are from time to time defined by the Parliament, but so as not to exceed those of the British House of Commons at the passing of the Act.
It thus appears that the Parliament of Canada is not, within its legislative powers, placed in an inferior position to that of Britain. The Sovereign forms an integral part of the Canadian as of the British Parliament, the Executive authority is vested in the Queen. So far as relates to her internal affairs, Canada stands in a position of equal dignity and importance with the United Kingdom, and, except in so far as the action of the Sovereign may be indirectly controlled by the Imperial Parliament, Canada stands in this respect rather in the position of a sister kingdom than in that of a dependency.
It is principally by the 91st section that the legislative authority of the Canadian Parliament is defined; and under this section it can" make laws for the peace, order and good government of Canada," in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces. By a portion of section 146 provision is made for the admission by Order in Council of Rupert's Land and the North West Territories upon addresses from the Canadian Houses of Parliament, and under this provision and under the Rupert's Land Act, 31 & 32 Vic. c. 1 5, and the British North America Act, 1871, 34 & 35 Vic. c. 28, the North West Territories have been added to the Dominion. By these two latter Acts the jurisdiction and powers of the Parliament of Canada are enlarged, both as to the territory over which they may be exercised and the subjects upon which laws may be enacted. There are no Provincial Legislatures (except in Manitoba) to share in the legislation, and there is no qualification of or exception from the power of legislation upon an matters and subjects relating to the" peace, order and good government" of Her Majesty's subjects and others in these added territories. Over these territories and with the addition of these subjects of legislation the Parliament of Canada is in the same position as it was over the Dominion when first formed, and in respect of the subjects of legislation committed to it by the British North America Act, 1867. The American theory of constitutional government is, that the legislatures are composed of delegates from the people, and that certain rights and powers only are committed to them, and that the people have retained to themselves certain rights necessary to the free enjoyment of life and liberty which the legislatures have been given no power to interfere with, and it is now attempted to apply the term" delegated" to the bestowal by the Imperial upon the Dominion Parliament of the powers of legislation conferred by the Confederation and other Acts, and in this way to introduce the same theory into the consideration of our constitution. The principle of the British Constitution is, however, that the people of the State, the three estates of the realm, composed of the Sovereign, the Lords, and the Commons, are all assembled in Parliament, and that the enactments of Parliament are those of the whole nation, and not of delegates from the people. From this necessarily follows the complete supremacy of Parliament, its power to legislate away the rights guaranteed by Magna Charta, the Bill of Rights, or any enactments of Parliament or charters of the Sovereign. As is said by Lord Campbell in Logan v. Burslem, 4 Moore P. C. Cas. 296, "As to what has been said as to a law not being binding if it be contrary to reason, that can receive no countenance from any court of justice whatever. A court of justice cannot set itself above the Legislature. It must suppose that what the Legislature has enacted is reasonable, and all, therefore, that we can do is to try and find out what the Legislature intended."
As this Dominion was intended to be formed" with a Constitution similar in principle to that of the United Kingdom," having a Parliament not of an inferior character, but of the dignity and importance to which I have referred, there can be no doubt that, in this respect, it stands in the same position as the Imperial Parliament with regard to the subject matters upon which it may legislate. That this is so has been determined by judicial decision. Mr. Justice Willes, in Phillips v. Eyre, L. R. Q. B. 20, says, A confirmed Act of the local Legislature, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament." In the Goodhue Will Case, 19 Gr. 382, Draper, c.J., having reference to an Act of the Provincial Legislature of Ontario, says, "As in England it is a settled principle that the Legislature is the supreme power, so in this Province I apprehend that, within the limits mapped out by the authority which gave us our present constitution, the legislature is the supreme power." This view of the position of the Provincial Legislatures is upheld by the Privy Council in Hodge v. The Queen, L. R. 9 App. Cas. 117. In Valin v. Langlois, 3 Sup. C. R. I, Ritchie, C. J., says, "I think that the British North America Act vests in the Dominion Parliament plenary power of legislation, in no way limited or circumscribed, and as large and of the same nature and extent as the Parliament of Great Britain, by whom the power to legislate was conferred, itself had. The Parliament of Great Britain clearly intended to divest itself of all legislative power over this subject matter, and it is equally clear that what it divested itself of, it conferred wholly and exclusively upon the Parliament of the Dominion." And this doctrine of a delegation of powers cannot be more aptly met than in the judgment of the Privy Council in Regina v. Burah, 10. R. 3 App. Cas. 889, referred to by my brother Taylor. The following remarks of Lord Selborne are so applicable that I must repeat them. He says (p. 904), " The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament, which created it, and it can of course do nothing beyond the limits which circumscribe those powers. But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has and was intended to have plenary powers of legislation, as large and of the same nature as those of Parliament itself.'
I take it that the plenary powers of legislation conferred upon the Parliament of Canada include the right to alter or repeal prior Acts of the Imperial Parliament upon subjects upon which the Canadian Parliament is given power to legislate, so far as the internal government of Canada is concerned. The powers which the Imperial Parliament alone could formerly exercise upon these subjects in our North West, whether by making laws entirely new, or by repeal or amendment of existing laws, our Parliament can now exercise. Nor do I think that the Imperial Act, 28 & 29 Vic. c. 63, is inconsistent with that view. Under section 2 of that Act, "Any Colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read subject to such Act, Order or Regulation, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative." This is not in any sense an Act of Interpretation of Imperial Statutes, which is to be considered as part of and to be read with Acts of the Imperial Parliament, and if it is repugnant to the British North America Act, 1867, and if by the latter Act powers are given to the Parliament of Canada without the limitation imposed by the former Act, the British North America Act, as being the later one, must prevail. But even without this view, I cannot think that the repugnancy referred to is such as would be involved by an amendment or repeal of an Act of the Imperial Parliament upon a subject upon which plenary powers of legislation were subsequently given to the Parliament of Canada. There could only be considered to be repugnancy within the meaning of the Act if it appeared by the Imperial Act that it was to remain in force notwithstanding any subsequent action of the Colonial Legislature, or if it were enacted after the plenary powers of legislation were granted, and were thus shown to be intended to override any Act which the Colonial Legislature had passed or might thereafter pass. It will be observed also that it is' only an Act of Parliament" extending to the Colony" to which reference is made in the section cited; and by the first section of the Act, in construing the Act, "An Act of Parliament or any provision thereof," is only to be said to "extend to any colony when it is made applicable to the colony by the express words or necessary intendment of any Act of Parliament." And by section 3, "No Colonial law shall be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, Order, or Regulation as aforesaid." Thus, it was evidently not the intention to exclude the Colonial Legislatures from making laws inconsistent with those which may have been enacted by the British Parliament for Britain or the United Kingdom particularly, and which may be in force in the colony solely by virtue of the principle that the British subjects settling therein carried with them the laws of Britain, or that by conquest the laws of Britain came in force. By the fifth section of this same Act, " Every Colonial Legislature shall have and be deemed at all times to have had full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein. " It must surely, then, not have been intended that such a Legislature should be limited in its establishment of these courts, and in its regulation of the procedure therein, to courts constituted as those of England, and a procedure similar to that which Parliament has thought proper to establish for English courts, or to a jury system which can be traced back to the early ages of English history, or even to trial by jury at all.
Nor can I see any reason to suppose that it was not intended that the Parliament of Canada should not have power to legislate regarding the crime of treason in Canada. It certainly seems to be given when power is given to make laws for the peace, order and good government of Canada. Even jurisdiction to declare what shall be and what shall not be acts of treason, when committed within Canada, against the person of the Sovereign herself, might safely be committed to the Parliament of Canada when the Sovereign is a part of Parliament, and has also power of disallowance of Acts, even after they have been assented to in her name by the Governor General. The propriety or impropriety of providing for the selection of a jury by a stipendiary magistrate appointed by the Crown to hold office during pleasure, of reducing to so small a number the peremptory challenges, and other provisions relating to the constitution of the court and the mode of procedure to which objection has been made, is for Parliament and not for the Courts to decide. We can only decide whether Parliament has, as I think it clearly appears that it has, even without the Rupert's Land Act, full power to constitute courts and to determine their method of procedure. With the provision in the Rupert's Land Act, authorizing the Parliament of Canada "to constitute such courts and officers as may be necessary for the peace, order and good government of Her Majesty's subjects and others" in the North West Territories, it does not appear that there can be any doubt that such courts are to be constituted with power to try a charge of high treason, as well as any other charge.
That the Canadian Parliament intended that the Court constituted under the North West Territories Act of 1880, section 76, sub-sections 5 and following sub?sections, should have power to hear and try a charge of treason, there can be no doubt. After provision is made for the trial of certain charges in a summary way, without a jury, the provision in sub?section 5 is that " In all other criminal cases (which must include a case of high treason) the stipendiary magistrate and a justice of the peace, with the intervention of a jury of six, may try any charge against any person or persons for any crime" (which must include the crime of treason).
Sub-section 10 provides that" any person arraigned for treason or felony may challenge peremptorily and without cause not more than six jurors." It was remarked that this is the only mention of treason in the Act, but it was the only occasion for its being specially mentioned. In view of the peculiar right of challenge in a case of treason, under the law of England, it was important to place it beyond doubt, by special mention, that in a case of treason as in any other case the number of peremptory challenges was to be limited to six. The wording of the sub-section may not be strictly correct, as not recognizing that treason is a felony, but the sub-section is not on that account of any less importance as showing the intention to give to the court jurisdiction over a charge of treason.
I cannot agree with the argument of counsel for the Crown, that an objection to the information is not open on this appeal, on account of the prisoner having pleaded to the charge. He demurred to the charge, and his demurrer being overruled he was obliged to plead. There is no indictment, and I do not think that an objection to the charge need be by a formal demurrer. In fact, it appears that the proceedings may be of the most informal character. Under section 77, "a person convicted of an offence punishable by death" has a right of appeal to this court, which has jurisdiction" to confirm the conviction or to order a new trial" There can be no appeal until there has been a conviction, and I cannot see that the prisoner should be prevented from making any point that he may raise in any way before the court below the subject of appeal. If a new trial should in any case be granted on the ground of a defect in the charge, it would undoubtedly be allowed to the prisoner to withdraw his plea when he should be again brought up for trial, if this were considered necessary order to give effect to the objection. Indeed, it appears to me that this would not be necessary, for I am of opinion that, upon a new trial, everything must be begun de novo, and the prisoner asked to plead again. There is no court continuing all the time before which he has pleaded; there must be a new court established for the trial of each charge, and the proceedings upon the first trial cannot be incorporated with those upon the second.
In my opinion, it is not necessary that a" charge," within the meaning of sub-section 5, should be made on oath before the court having the jurisdiction to try the charge. By section 76, the stipendiary magistrate is given the" magisterial and other functions of a justice of the peace," and power to "hear and determine any charge against any person" in the manner set out in the various sub-sections of the section. I take it that the "charge" referred to in the 5th sub-section is one laid before him by information, as before a justice of the peace, to procure the committal of a party for trial. The charge having been so made he has to summon the jury and procure the attendance of a justice of the peace, and before the court so constituted the charge is to be tried. This is what has been done in the present instance.
The remaining objection of law to the conviction is to the method of taking the notes of the evidence. I cannot agree in the view that the clause requiring full notes of the evidence and other proceedings to be taken upon the trial is directory merely. Whether the notes are to be taken merely for transmission to the Minister of Justice, as required by the 8th sub-section, or with a view also to use upon the appeal allowed, it is equally important that they be taken. If it is only with a view to their transmission to the Minister, as the 8th sub-section also provides for the postponement of the execution of a sentence of death until the pleasure of the Governor has been communicated to the Lieutenant Governor, it is an important part of the procedure at the trial that the notes of evidence be taken in order that the action of the Executive may be based upon the real facts proved; almost, if not quite, as important as that the evidence should be laid properly before the jury itself. I should not hesitate to adjudge illegal a conviction of a capital offence shown to have been obtained upon a trial so conducted that these facts could not be properly laid before the Executive by the notes of evidence, for which the statute provides, taken down during the progress of the trial.
It appears by the certificate of the magistrate that the only full notes of the evidence taken at the trial were taken by "short-hand reporters" appointed by the magistrate. Although it is not so stated, I think that we may assume that these notes were taken in what is known as short-hand. Omnia praesumuntur rite esse acta is a maxim applicable as well in criminal as in civil matters, and if we cannot make such an assumption we must assume them to have been in the ordinary form of writing, or at least in such form of writing as would satisfy the statute. The statutory provision is, that" full notes" are to be taken" in writing." The very definitions of the words" writing," and "to write," are sufficient to show that the methods of recording language covered by the word" stenography," come within the term "writing." The very derivation of the word "stenography" shows it to mean a mode or modes of writing. " Stenography" is a generic term which embraces every system of short-hand, whether based upon alphabetic, phonetic, or hieroglyphic principles. There are advantages and disadvantages both in stenography and in ordinary writing for the purpose of reporting the evidence given orally in a court of justice. The magistrate is not obliged to take the notes himself; he is authorized by the statute to cause it to be done by another or others. It has not been the practice so far as I know, in any court in Canada to take down verbatium question and answer in ordinary writing, and that could not be presumed to be required. If it is not, but the notes are taken in narrative form, their accuracy depends largely on the ability of the reporter hurriedly to apprehend the effect of question and answer and throw them together so as properly to set down the idea of the witness. Any system by which question and answer are given verbatium is certainly more likely to be accurate than this method, notwithstanding the chances of error suggested by Mr. Ewart. The short-hand system of the reporter may be something which himself alone can understand, it may be a system which is known to many, and it may be that his notes can be read by many. I think that we arc not entitled to assume, for the purpose of holding the conviction illegal, that in the present instance it was a system understood by the reporter alone, even if that assumption should properly lead to that conclusion.
The use of short-hand reporters in the courts had been in vogue for a considerable time in more than one of the Provinces when the North West Territories Act of 1880 was passed; and when Parliament provided only for the taking of the notes" in writing," without any further limitation of such a general word, it may be well understood to have had in view a class or method of writing which was in such general use. I have felt the more satisfied in coming to this conclusion, as it has not been suggested that the prisoner has been put under any disadvantage by the system adopted for reporting the evidence and proceedings, or that the report of the evidence or proceedings is in any respect inaccurate.
The question of insanity is raised upon this appeal as a question of fact only. No objection has been made to the charge of the magistrate to the jury. The principles laid down by the courts of Upper Canada, under the Act which authorized the granting of new trials in criminal cases, and which have been referred to by my brother Taylor, appear to me to be those which should govern this court in hearing and determining appeals from convictions in the North West Territories upon questions of fact, except that it is hardly accurate to say that the court will not undertake to determine on what side is the weight of evidence, but only if there is evidence to go to the jury. This hardly applies in a case like the present. The presumption of law is that the prisoner is, and was, sane. The burden of proof of insanity is upon the defence. McNaghten's case, 10 Cl. & Fin. 204; Regina v. Stokes, 3 C. & K. 185 ; Regina v. Layton, 4 Cox C. C. 149. Without evidence to go to the jury, the prisoner cannot be acquitted upon the plea of insanity. If there is in such a case to be any appeal after a conviction, it must be on the ground that the evidence is so overwhelming in favor of the insanity of the prisoner that the court will feel that there has been a miscarriage of justice that a poor, deluded, irresponsible being has been adjudged guilty of that of which he could not be guilty if he were deprived of the power to reason upon the act complained of to determine by reason if it was right or wrong.
Certainly, a new trial should not be granted if the evidence were such that the jury could reasonably convict or acquit. Mr. Lemieux laid great stress upon the fact that the jury accompanied their verdict with a recommendation to mercy, as showing that they thought the prisoner insane. I cannot see that any importance can be attached to this. I have read very carefully the report of the charge of the magistrate, and it appears to have been so clearly put that the jury could have no doubt of their duty in case they thought the prisoner insane when he committed the acts in question. They could not have listened to that charge without understanding fully that to bring in a verdict of guilty was to declare emphatically their disbelief in the insanity of the prisoner. The recommendation may be accounted for in many ways not connected at all with the question of the sanity of the prisoner.
The stipendiary magistrate adopts, in his charge to the jury, the test laid down in McNaghten's case, 10 Cl. & F. 2 4. Although this rule was laid down by the leading judges of England, at the time, to the House of Lords, it was not so done in any particular case which was before that tribunal for adjudication, and it could hardly be considered as a decision absolutely binding upon any court. I should consider this court fully justified in departing from it, if good ground were shown therefore, or, if, even without argument of counsel against it, it appeared to the court itself to be improper as applied to the facts of a particular case. In the present instance, counsel for the prisoner do not attempt to impugn the propriety of the rule, and in my opinion they could not successfully do so. It has never, so far as I can find, been overruled, though it may to some extent have been questioned. This rule is, that" notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he acted contrary to law."
Mr. Justice Maule, on the same occasion, puts it thus: "To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong."
The argument for the insanity of the prisoner is based to a certain extent on the idea that he was in such a state of mind that he did not know that the acts he was committing were wrong; that he fancied himself inspired of Heaven, and acting under the direction of Heaven, and in a holy cause. It would be exceedingly dangerous to admit the validity of such an argument for adjudging an accused person insane, particularly where the offence charged is of such a nature as that of which this prisoner is convicted. A man who leads an armed insurrection does so from a desire for murder, rapine, robbery, or for personal gain or advantage of some kind, or he does so in the belief that he has a righteous cause, grievances which he is entitled to take up arms to have redressed. In the latter case, if sincere, he believes it to be right to do so, that the law of God permits, nay even calls upon him, to do so ; and to adjudge a man insane on that ground, would be to open the door to an acquittal in every case in which a man with an honest belief in his wrongs, and that they were sufficiently grievous to warrant any means to secure their redress, should take up arms against the constituted authorities of the land. His action was exceedingly rash and foolhardy, but he reasoned that he could achieve a sufficient success to extort something from the Government, whether for himself or his followers. His actions were based on reason and not on insane delusion.
It is true that there were some medical opinions that the prisoner was insane, based upon an account of his actions and his previous history, but the jury were not bound to accept such opinions. The jury had to listen to the grounds for these opinions, and to form their own judgment upon them, In my opinion, the evidence was such that the jury would not have been justified in any verdict than that which they gave; but even if it be admitted that they might reasonably have found in favor of the insanity of the prisoner, it cannot be said that they could not reasonably find him sane.
I hesitate to add anything to the remarks of my brother Taylor upon the evidence on the question of insanity. I have read over very carefully all the evidence that was laid before the jury, and I could say nothing that would more fully express the opinions I have formed from its perusal than what is expressed by him. I agree with him also in saying that the prisoner has been ably and zealously defended, and that nothing that could assist his case appears to have been left untouched. If I could see any reason to believe that the jury, whether from passion or prejudice, or otherwise, had decided against the weight of the evidence upon the prisoner's insanity, I should desire to find that the Court could so interpret the statute as to be justified in causing the case to be laid before another jury for their consideration, as the only feelings we can have towards a fellow creature who has been deprived of the reason which places us above the brutes, are sincere pity and a desire to have some attempt made to restore him to the full enjoyment of a sound mind.
The prisoner is evidently a man of more than ordinary intelligence,
who could have been of great service to those of his race in this country;
and if he were insane, the greatest service that could be rendered to the
country would be, that he should, if possible, be restored to that condition
of mind which would enable him to use his mental powers and his education
to assist in promoting the interests of that important class in the community
to which he belongs. It is with the deepest regret that I recognize that
the acts charged were committed without any such justification, and that
this Court cannot in any way be justified in interfering. In my judgment,
the conviction must be confirmed.