On appeal from the Court of Queen's Bench for the Province of Manitoba. (Reported 10 App. Cas. 675.) Practice-Leave to appeal in Criminal Cases-validity of 43 Vict. c. 25 (Canada). The rule of the Judicial Committee is not to grant leave to appeal in criminal cases except where some clear departure from the requirements of justice is alleged to have taken place. Held, that 34 and 35 Vict, c. 28, which authorizes the Parliament of Canada to provide for "the administration, peace, order and good government of any territory, not for the time being included in any Province," vests in that Parliament the utmost discretion of enactment for the attainment of those objects. Accordingly Canadian Act 43 Vict. c. 25, is intra vires the Legislature. Sect. 76, sub-section 7, which prescribes that full notes of evidence be taken, is literally complied with when those notes are taken in shorthand. In July, 1885, the petitioner was tried for the crime of treason before a stipendiary magistrate and a justice of the peace, with the intervention of a jury of six persons, in the North-West Territories of the Dominion of Canada, and having been found guilty was sentenced to death. *Present :- THE LORD CHANCELLOR (LORD HALSBURY), LORD FITZGERALD, LORD MONKSWELL, LORD HOBHOUSE, LORD ESHER, and SIR BARNES PEACOCK. 1885 RIEL บ. THE QUEEN. Statement. The Court of Queen's Bench for the Province of Manitoba in appeal, confirmed the sentence. : The petitioner applied for special leave to appeal on the grounds, as stated in his petition, that the stipendiary magistrate and justice had no jurisdiction to try him for treason if they had there were errors in procedure which vitiated the trial, viz.; there was no indictment preferred by a grand jury, no coroner's inquisition, the evidence was not taken down in writing as required by statute. [676] Bigham, Q. C. (Jeune and Fitzpatrick of the Canadian Bar with him) for the petitioner, contended that leave ought to be granted. A substantial question of law arose, whether the Court of first instance had jurisdiction to try the prisoner in the way it did. After referring to the British North America Act, 1867, ss. 17, 18, 58, 69, 91 and 92, and especially sub-sect. 27 of the latter section, as showing the powers of the Dominion Parliament and Provincial Governments and Legislatures; sect. 146; sect. 129; 31 and 32 Vict. c. 105; Canadian Acts 32 and 33 Vict. c. 3, and 33 Vict. c. 3; Imperial Act, 34 and 35 Vict. c. 28 (British North America Act, 1871), s. 4, it was observed that the offence and trial were not in Manitoba, but in the North-West Territory, which became part of the Dominion under the Act of 1871; and that the petitioner was consequently tried under 43 Vict. c. 25 (Canada), s. 76 being the important section. The subsections do not give jurisdiction; if they purport so to do they are ultra vires of the legislature. Treason is in a peculiar manner an offence against the State, and the Imperial Parliament could not have intended that the Dominion Parliament should legislate upon it to the extent of altering the statutory rights of a man put upon 1885 RIEL บ. Argument. his trial regarding it. The petitioner is entitled to all the rights which he possessed under English law, unless they have been specifically taken away. He possesses THE QUEEN. statutory rights under 7 and 8, Will. 3, c. 3, to a trial before a judge and by a jury of twelve, with a right of challenging thirty-five. The Dominion Parliament, under the British North America Act, 1871, s. 4, has no power to take away those rights, and render him liable to be tried before two magistrates and a jury of six, with a right of challenging six. The Act relied upon was not necessary for peace, order and good conduct. [SIR BARNES PEACOCK :-The same words occur in the Act under which the Indian Penal Code and Code of Criminal Procedure were passed and authorized those Acts.] Reference was then made to sub-sect. 7 of sect. 76 of the Act of 1880, and objection was made that the evidence was taken in shorthand, not legible to any one but a particular person. It was not writing within the meaning of the section. [677] [LORD HALSBURY, L.C. :-Is there any authority for appeal in criminal cases ?] Reg. v. Murphy (1); Reg. v. Bertrand (2); Reg. v. Coote (3). The Attorney-General (Sir Richard Webster, Q. C.,) R. S. Wright and Danckwerts, for the Crown, were not called upon. Burbidge, Q. C. (the Canadian Deputy Minister of Justice), represented the Government of Canada. The judgment of their Lordships was delivered by LORD HALSBURY, L. C. : This is a petition of Louis Riel, tried in July last at (1) L. R. 2 P. C. 535. (3) L. R. 4 P. C. 599 ; ante, vol. 1 p. 57. Regina, in the North-West Territories of Canada, and convicted of high treason and sentenced to death, for THE QUEEN, leave to appeal against an order of the Queen's Bench of Manitoba, confirming that conviction. Judgment. It is the usual rule of this committee not to grant leave to appeal in criminal cases, except where some clear departure from the requirements of justice is alleged to have taken place. Whether in this case the prerogative to grant an appeal still exists as their Lordships have not heard that question argued, they desire neither to affirm nor to deny, but they are clearly of opinion that in this case leave should not be given. The petitioner was tried under the provisions of an Act passed by the Canadian Legislature, providing for the administration of criminal justice for those portions of the North-West Territory of Canada in which the offence charged against the petitioner is alleged to have been committed. No question has been raised that the facts as alleged were not proved to have taken place, nor was it denied before the original tribunal, or before the Court of Appeal in Manitoba, that the acts attributed to the petitioner amounted to the crime of high treason. The defence upon the facts sought to be established before the jury was, that the petitioner was not responsible for his acts by reason of mental infirmity. [678] The jury before whom the petitioner was tried negatived that defence, and no argument has been presented to their Lordships, directed to show that that finding was otherwise than correct. Of the objections raised on the face of the petition two points only seem to be capable of plausible, or, indeed, intelligible expression, and they have been urged before their Lordships with as much force as was possible, and as fully and completely in their Lordships' opinion as they would have been if leave 1885 RIEL บ. to appeal had been granted, and they have been dealt with by the judgments of the Court of Appeal in Manitoba with a patience, learning, and ability that leaves very little THE QUEEN. to be said upon them. The first point is that the Act itself under which the petitioner was tried was ultra vires the Dominion Parliament to enact. That parliament derived its authority for the passing of that statute from the Imperial statute, 34 and 35 Vict. c. 28, which enacted that the Parliament of Canada may from time to time make provision for the administration, peace, order, and good government of any territory, not for the time being included in any province. It is not denied that the place in question was one in respect of which the Parliament of Canada was authorized to make such provision, but it appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order, and good government cannot, as matters of law, be provisions for peace, order, and good government in the territories to which the statute relates, and further that, if a Court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion Parliament to enact. Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure, as it is known and practised in this country, have been authorized in Her Majesty's Indian Judgment. |