Crime and Punishment in Upper Canada. Janice Nickerson
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Records of investigations for treason and rebellion are often found separated from regular criminal records. Known collec–tions are as follows.
Inventory
• AO RG22-143: Court of King’s Bench records of high treason trial of 1814. Series consists of the few remain–ing records of the High Treason Trials held at Ancaster during May and June 1814. Included are the following documents: dockets regarding the outlawry of Matthias Brown and Benajah Mallory; two depositions against Eliazir Daggett, Oliver Gran, and Eliakim Crosby; and the indictment against Luther McNeal and an exem–plification of judgement against McNeal. Also included with this series are the commissions and inquisitions regarding lands forfeited by those convicted of high treason. The commissions were issued in December 1817, and the inquisitions were held in January 1818. There is also a commission and inquisition for Samuel Thompson dated 1824.
• LAC RG5 B39 Civil Secretary, records relating to Rebellions. Upper Canada. Records of the inquiry into the conduct of Colonel John Prince at the Battle of Windsor, 1839.
• LAC RG5 B43 Civil Secretary, records relating to Rebellions. Upper Canada. Documents relating to the prosecution of Alexander McLeod for the destruction of the Caroline, 1841.
• LAC R4029-0-2-E (formerly MG24 I8) MacDonell Family Fonds, Allan MacDonell papers, 1837–1868. Series consists of papers and records collected as sheriff of Gore, 1837–1843 relating primarily to the Rebellion of 1837.
A person accused of a crime in Upper Canada was presumed innocent until proven guilty. This was true regardless of the type or severity of the offence. However, there were different types of adjudication. Very minor offences, often called regulatory offences or by-law infractions, such as failing to perform stat–ute labour, being drunk and disorderly, and prostitution, did not require the attention of a court and could be dealt with “sum–marily” (i.e., without trial by jury) by one or two magistrates. Minor crimes that were not punishable by capital punishment or penitentiary terms were tried at the lower-level criminal courts, called Quarter Sessions. Capital crimes were tried only by the high court, popularly called the Assizes.
Summary Justice
Before 1834, certain minor infractions could be handled infor–mally by local magistrates. A long history of statutes (based on English law, and continuing with Quebec laws prior to the founding of Upper Canada in 1791), stipulated which offences could be decided by a single magistrate, which ones required two magistrates, which required three magistrates, and which had to go before the courts.When two or three magistrates sat together out–side the courts, their sessions were called “Petty Sessions.” Those sessions did not require a jury. This was called “Summary Justice.”1
After 1834, magistrates gained a great deal of authority, so a single Justice of the Peace could hear a wide range of minor cases without a jury.These included simple assault, willful or malicious damage to real or personal property, and willful disturbance of a religious congregation by rude and indecent behaviour or noise.2
The 1833 Act to Provide for the Summary Punishment of Petty Trespasses and Other Offences, 4 William IV (1834), c.4 also laid down formal regulations for how summary prosecutions were handled. First, the prosecution had to take place within three months of the alleged offence. The accused had to be sum–moned to appear by a Justice of the Peace. If the accused didn’t appear, the magistrate could proceed without his or her presence (ex parte). He summoned witnesses, heard all the evidence, and then discharged or levied a fine, forfeiture, or penalty up to £5. He could also decide to refer the case to the Court of Quarter Sessions and commit the accused for trial with or without bail.3
If there was a conviction, but either the accused or the pros–ecutor (generally the victim) felt that justice had not been served, he or she could appeal to next general Quarter Session, giving notice to the other party in writing within three days of sum–mary conviction and seven days before the session.4
The legislative change also required magistrates to regis–ter their summary convictions with the next Quarter Sessions, including the records of money gathered from fines, forfeitures, or penalties. As a result, we have a great deal more evidence of their activities for the later period.5
Another set of regulations required Justices of the Peace who wanted to send a case to trial at the Quarter Sessions to take down the complainant’s testimony in writing, show it to the accused, and let him or her cross-examine the complainant. The magistrates could then determine if bail should be granted. One magistrate could commit the accused to jail if there was “positive and credible evidence of a felony having been committed” but it required two magistrates to determine bail.6
Many magistrates also likely helped people settle disputes without formal charges, sometimes using formal arbitration bonds or other legal documents.7 Indeed, this seems to have been encouraged. Attorney General Henry Boulton replied to a ques–tion about the amount of discretion available to magistrates in 1830, saying, “Magistrates may exercise their discretion in allow–ing persons to compromise trifling misdemeanours where the interest of the public do not require an example to be made … by discouraging the prosecution of petty offences not affecting the public, I conceive they will best discharge their duty and serve the public interests.”8
Also, many offences that ought to have been considered serious and go before the Quarter Sessions or Assizes were actually given lesser charges and tried summarily by Justices of the Peace.This was done to avoid disrupting community relations and because it was quicker and more convenient. Both victims and magistrates had a great deal of discretion in deciding how to pursue a case.9
Police Villages and Boards of Police
As villages and towns got larger some acquired police powers, which meant some degree of additional jurisdiction, such as to enact by-laws concerning local safety issues (mostly for fire prevention) and market regulations. Village or town magistrates could convict by-law offenders summarily, imposing small fines as punishment.
City Police Report, the Advocate, 12 June 1834, 3.
In the town of York, for example, a police office was formed in 1826, where a magistrate would be on duty every day to hear and deal with minor complaints. The most common offences were public drunkenness, disorderly conduct, and selling spirits without a licence. The summary jurisdiction of the police office continued, even after Toronto became a city with its own Mayor’s Court, even though the mayor automatically became the police office magistrate as well as presiding over the Mayor’s Court (Mayor’s Court). Unfortunately, there was no requirement to keep records of summary convictions made by the police magistrates, so no known official records have survived. Our main sources of information about the Police Court are newspaper reports.10
Incorporated towns acquired elected governing structures, called boards of police, headed by a mayor. Within the town lim–its, the board of police had special jurisdiction to decide minor cases without a jury. In addition to the members of the board, the only people who attended the court were a bailiff or consta–ble, the prosecutor/victim, defendant, and witnesses brought by them.11 The first town to become incorporated in Upper Canada was Brockville in 1832. Other towns soon followed, including Hamilton in 1833; Belleville, Cornwall, Port Hope, and Prescott in 1834; Cobourg and Picton in 1837.12 More extensive powers were granted to cities and towns incorporated by special acts of legislation: Toronto (city) in 1834, Kingston (town) in 1838.13
Based on the records of the Prescott board of police, it seems that in the early years the poor and working class residents of towns made ample use of this low-level court to air disputes with their neighbours. Women were frequently represented in