Crime and Punishment in Upper Canada. Janice Nickerson
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were not supposed to act as independent persons under the law. In fact, the minutes even record one case of a married woman successfully prosecuting her husband for disturbing the peace by striking her.14 The board of police was less expensive and met far more frequently than the Quarter Sessions, so justice was both accessible and swift. It seems, however, that because of this very openness, townspeople of “means” did not avail themselves of this avenue of justice.15
To be eligible to serve on the board of police, a man had to own property of assessed value of at least £60. That meant most board members were merchants or manufacturers.They were elected by male residents who were British subjects and owned a dwelling house and a plot of land or who paid rent of at least £5 a year.16
In her study of the Prescott Board of Police records, McKenna found what appeared to be almost verbatim transcripts of the testimony heard before the court, including many examples of verbal insults exchanged by quarrelling women of the town. For example, Catherine Kelleaugher, neighbour of Mary Greneau, who was accused of running a “disorderly house,” reported that one evening two women, Bridget Savage and Margaret Doneghan, engaged in a shouting match on the street outside Mary Greneau’s house, calling each other “bitch,” “whore,” and “bastard.”17
Convictions by police magistrates and board of police could be appealed to the Quarter Sessions of the district, similar to summary convictions by district magistrates.
Pre-Trial Events
If the case had to go to court the first step was for the magistrate to forward the evidence he had gathered to the Clerk of the Peace for record keeping. The magistrate then decided whether to take the case to the Quarter Sessions or the Assizes. Often, a serious case would first go to the Quarter Sessions where all the magis–trates could jointly decide whether it needed to be moved to the higher court. The magistrate then selected the necessary witnesses, and prepared summonses and sent them to the sheriff to be served.
The sheriff assigned the summons to whichever constable was available for the township where the witness lived and the constable delivered it. This had to be done well before the scheduled date of the trial, so the witnesses could prepare to attend. In some cases, witnesses (even victims who were pros–ecuting) were required to sign recognizances to guarantee that they would appear on court day.
Grand jury summons to Thomas Carfrae, Home District Assize, Spring 1835, Ephemera Collection, Baldwin Room,Toronto Public Library.
A bill of indictment then had to be prepared describing the offence for which the accused would be tried and summarizing the prosecution’s evidence. In cases of murder or manslaughter, the bill of indictment was drawn up by the coroner. In other cases, the bill of indictment was drawn up by two Justices of the Peace.
Shortly before the court was due to sit, the sheriff drew up two lists of eligible jurors, called panels. Each list had to contain the full names and addresses of at least thirty-two and no more than forty-eight residents of the district.18 Members of the panels were summoned to appear in court on the first day of the session.
Trial Procedures
Just prior to each court session, a grand jury of at least twelve and up to twenty-four men was selected (the actual number varied from session to session).The presiding judge or magistrate would read the charge to the jury, summarizing the cases for the ses–sion, often commenting on the general state of the district. For example, at the spring session of the Mayor’s Court in Toronto, Anna Jameson tells us that the mayor took the opportunity of the charge to the grand jury to complain “of the increase of crime, and of poverty, wretchedness, and disease … within the bounds of the city, and particularly of the increase of street beggars and juvenile depredators, and he recommends the erection of a house of industry on a large scale.”19
William Dummer Powell’s charge to the grand jury in Cornwall, 9 August 1825, reads:
The charges in the Kalendar [sic] for the district are limited to one case of rape and two of pey–ing. The former a crime of peculiar atrocity in as much as it consists of force and violence. To the weaker sex universaly [sic] admitted to be the disgrace and shame of mankind — [illegible word - cnclime? evilime?] of the civil violation of the law of nature and society.The injury to the immediate feelings of the patient and the sort of disgrace which is absurdly permitted to attach to the innocent sufferer. Juries are called upon by consideration for their own security, happiness and honor to leave no opportunity for a renewal of the offence by the same [illigible word - p???]. In as much however as this crime is odious in itself and obnoxious to society it behoves [sic] us to be cautious in applying the charge. It is of a nature readily to be invented and of dif–ficult proof. The evidence is commonly limited to the party making the charge and must gener–ally be supported on her evidence; you cannot be too careful in ascertaining that the crime has been committed and that the person of the corp [illegible word, carried?] has been violated. The other [two illegible words] evidence of the fact is of the province of the petty jury, who will decide upon the evidence of the accumulation by most minute examination.20
“Exterior of a Court-house in the Backwoods of Canada,” “A Jury in the Back–woods of Canada Retiring to Deliberate,” and “Interior of a Court-House in the Backwoods of Canada),” Illustrated London News, Supplement, 17 February 1855, 161.
Some judges were known for their extremely verbose charges. Assize judge James B. Macaulay’s charges, for example, typically took up a dozen pages in his notebooks.
After attending to their other duties (such as inspecting the gaol), the grand jury would meet in a private room separate from the open court. Not all early courthouses were large enough to have a separate room, so the grand jury would meet somewhere else first. The jury was then presented with bills of indictment for each case in the docket. They considered the evidence provided by the prosecution and for each case decided whether the Crown had sufficient evidence for the case to proceed to trial. If twelve grand jurors agreed, they wrote “true bill.” If the grand jury con–sidered the charges groundless, then the indictment was deemed “not a true bill” or “not found” and the accused was released.21
Once the accused was indicted, the case was tried before the petit jury. A unique group of twelve petit jurors was chosen for each trial. The Act for the Regulation of Juries spelled out the proce–dure for choosing these juries. The names of the member of the jury panel were taken from the sheriff’s list, written on separate slips of paper, and put in a box.When the court began, an impar–tial officer of the court was to draw one name at a time, call–ing out each name three times, until there were twelve selected. Sometimes this might require drawing more than twelve names, as some potential jurors might not have appeared in court (they would be fined), or might have their impartiality challenged by either the prosecution or defence.
Bill of Indictment, Barney Woolman, for assault, 1833, Lincoln County Court of General Sessions of the Peace Records, Archives of Ontario, RG 22-372, Box 16, Folder 55.
Most prosecutions were initiated by the victims (or their relatives) of a crime.22 At the Quarter Sessions, victims gathered their own witnesses and presented their cases in court.23 If the prosecutor didn’t appear, the defendant was released.
It seems that many cases at the Quarter Sessions were dis–missed due to the lack of prosecution, as one particularly quar–relsome woman discovered and used to her advantage. Mary Moodey was charged with assault and battery