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Essays in the History of Canadian Law

Essays in the History of Canadian Law: Crime and Criminal Justice in Canadian History

Volume: 5
Copyright Date: 1994
Pages: 584
  • Book Info
    Essays in the History of Canadian Law
    Book Description:

    The volume covers criminal justice history at various times in British Columbia, Ontario, Quebec, and the Maritimes. It is a study which opens up greater vistas of understanding to all those interested in the interstices of law, crime, and punishment.

    eISBN: 978-1-4426-2785-7
    Subjects: Law, History

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Foreword for reprint The Osgoode Society for Canadian Legal History
    (pp. ix-x)
    R. Roy McMurtry and Jim Phillips

    This collection was first published by the Osgoode Society in 1994. The foreword written on that occasion expressed the hope that it “would appeal to a wide audience of legal practitioners, academics, and members of the general public.” It also noted that the volume was something of a milestone in being entirely devoted to the history of criminal justice in Canada. Although a number of significant volumes have appeared in the field since 1994, we believe that this collection has stood the test of time, and that its insights into, among other things, women and crime, native peoples and the...

    (pp. xi-xii)
    R. Roy McMurtry and Peter Oliver

    The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney general for Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support programme, a graduate student research assistance programme, and work in the fields of oral history and legal archives. The Society publishes (at the rate of...

  5. Acknowledgments
    (pp. xiii-xiv)
    Jim Phillips, Tina Loo and Susan Lewthwaite
  6. Contributors
    (pp. xv-2)
  7. 1 Introduction
    (pp. 3-16)

    This is the fifth volume in the Osgoode Society’s series ofEssays in the History of Canadian Law. The previous volumes paid only a limited amount of attention to crime and criminal justice history,¹ perhaps unusually limited given the predominant place of criminal justice themes in the writing of legal history in Britain and the United States and the long-standing preoccupation of Canadian historians with law, order, and authority. This collection seems to us, in fact, to reflect the recent interest among historians in examining these latter issues through the law generally and the criminal law more specifically, and it...


    • 2 Native Sovereignty and French Justice in Early Canada
      (pp. 17-40)

      As native territorial claims and the issue of self-government become increasingly important on the Canadian political agenda, questions of native sovereignty in historical context take on new meaning. The United States recognizes Indian nations as sovereign entities to whom the federal government is legally bound to carry out its ‘trust responsibility’¹ Canada has not followed this lead, and although some recent decisions – notably the Sparrow (1987) and Sioui (1990) cases – have been more generous in recognizing native claims,² aboriginal rights are never taken for granted. In recent Quebec cases, for example, the Crown has tried to prove that...

    • 3 ‘The Queen’s Law Is Better Than Yours’: International Homicide in Early British Columbia
      (pp. 41-111)

      In September 1884 the chiefs and people of Kit-au-max, a Gitksan village at the Forks of the Skeena River, wrote to the provincial government hundreds of miles to the south to explain their law of homicide. There was some urgency involved, because the police had recently arrested one of their number and taken him to Victoria to be tried for murdering a white man. The head chief, Geddum-Cal-Doe, said that he and his people wanted peace between the whites and the Indians, and asked that the prisoner be shown clemency.¹ A number of white miners also wrote to the government...

    • 4 The Road from Bute Inlet: Crime and Colonial Identity in British Columbia
      (pp. 112-142)
      TINA LOO

      In the middle of August 1864, eight Chilcotin Indians walked into the camp of the men who had been pursuing them without avail for some four months and were promptly arrested without incident by Justice of the Peace William George Cox. Five were charged with the murders of eighteen Europeans, most of them labourers, who had met their ends while working on the Bute Inlet road in the spring of that year. The group were tried at the fall assizes in Quesnelmouth, found guilty, and sentenced to death. In writing to British Columbia’s governor to report on the case and...


    • 5 Violence, Marriage, and Family Honour: Aspects of the Legal Regulation of Marriage in New France
      (pp. 143-173)

      This essay falls within the framework of research into family life. For about thirty years now, researchers in Europe have been looking at the development of the family in terms of its composition and its educational, social, and economic functions. There have also been studies on contraception, sexual relations, and parent-child and husband-wife relationships. This essay is intended to shed light on some of these issues with regard to couples and families in New France.

      Since the pioneer essays of Philippe Ariés, there have been important developments in the history of the family both in Europe and in North America....

    • 6 Women, Crime, and Criminal Justice in Early Halifax, 1750–1800
      (pp. 174-206)

      This essay is principally concerned with two aspects of the relationship among women, crime, and punishment in eighteenth-century Halifax – the treatment of female offenders by the criminal justice system and women’s experience as victims of male violence. It complements another paper on female offending in this period.¹ Both papers are guided by two lines of inquiry. First, they seek to chart the broad contours of aspects of crime and punishment in one early Canadian society, to analyse rates of offending and prosecution, the prevalence and nature of violence, and the ways in which the institutions of criminal justice responded...

    • 7 Patriarchy Modified: The Criminal Prosecution of Rape in York County, Ontario, 1880–1930
      (pp. 207-251)

      Three centuries after jurist Matthew Hale cautioned that rape is a crime easy to charge but difficult to defend, recent feminist research has established that it is a crime easy to commit and extremely difficult to prove.¹ The sexual victimization of women and children by men, we now realize, is more extensive than police and court records would indicate. Furthermore, victims who do report offences to authorities may find the trial more traumatic than the assault itself.² Susan Brownmiller and others have argued that rape laws originated not out of a desire to protect women from sexual assault but rather...

    • 8 Prosecution of Abortions under Canadian Law, 1900–1950
      (pp. 252-292)

      The procurement of an abortion was a criminal offence under Canadian law throughout the first half of the twentieth century. The anti-abortion statutes which had originated in the nineteenth century made it a crime to induce miscarriage, or to attempt to do so, at any stage of pregnancy, whether the patient was actually pregnant or not. It was also unlawful to sell or advertise any birth control device.¹ Early-twentieth-century legislators apparently saw little need to alter these laws; with the enactment of the Criminal Code in 1892,² Canadian abortion law solidified into a shape which would not change substantially until...


    • 9 Between the Old Order and Modern Times: Poverty, Criminality, and Power in Quebec, 1791–1840
      (pp. 293-323)

      In the half century between the enactment of the Constitutional Act in 1791 and the Act of Union in 1840 Lower Canada saw its traditional methods of dealing with poverty and criminality come under heavy attack, reviled by critics and buffeted by economic, political, and social transformations. In particular, the great transition to capitalism is generally regarded as having occurred in this period. This transition was a complex and far-reaching phenomenon which profoundly altered social and economic ideas and practices. Historians have tended, wrongly I believe, to see both this transition to capitalism and the changes in social practices that...

    • 10 Rebel as Magistrate: William Lyon Mackenzie and His Enemies
      (pp. 324-352)

      On 6 December 1834, theToronto Recorderpublished a sensational charge against the mayor. Some two weeks earlier, it reported, the mayor had sentenced two prostitutes to a fortnight’s hard labour in the district jail and had ordered them to be shut up without access to fire. The jail was a new brick building, and presumably less of a hell-hole than most Upper Canadian prisons. Still, it was not centrally heated, and to confine prisoners without fire during the cold days of late November was a cruel punishment if not an unlawful one. As for hard labour, that could only...

    • 11 Violence, Law, and Community in Rural Upper Canada
      (pp. 353-386)

      On 18 December 1839 John Thomson, a farmer in Burford township, located southwest of Brantford, Ontario, appeared before John Weir, a local justice of the peace, to complain that Allan Muir, one of his neighbours, ‘did with an Axe and other instruments maliciously … cut down and destroy a gate and also did Break a Lock from off [my] Barn.’¹ This act of property damage, apparently trivial, is the kind of offence generally ignored by historians of crime and criminal justice in Ontario, who have preferred to discuss such topics as elite ideology, serious crime, the introduction of the penitentiary,...

    • 12 Crime and Punishment in Middlesex County, Ontario, 1871–1920
      (pp. 387-438)

      Responding to crime and punishing criminals are central and enduring tasks of every social order. At the same time, what is defined as a crime, and which behaviours and offenders are judged most severely, mirror social values and are historically specific. It is these dual aspects of crime – its constancy as a social phenomenon, and the changing nature of society’s responses to it – which make the complex realm of criminal justice one of the most important means of shedding light on the larger social structure in which it is embedded. On the one hand, studies of crime and...


    • 13 Prison as Factory, Convict as Worker: A Study of the Mid-Victorian St John Penitentiary, 1841–1880
      (pp. 439-477)

      A product of early nineteenth-century penal reform, the St John Penitentiary was a significant architectural fixture of St John (now Saint John), in the colony of New Brunswick. The prison, which existed from 1842 to 1880, was built on a six-acre site one and a half miles from the city centre across Courtenay Bay and slightly east of Little River Road in the parish of Simonds and consciously situated beyond the pale of respectable and law-abiding mid-Victorian society. Like its inmate population – the mid-Victorian ‘criminal class’ – the prison was geographically and socially marginalized. To most New Brunswickers, this...

    • 14 Prisoners for Profit: Convict Labour in the Ontario Central Prison, 1874–1915
      (pp. 478-515)

      The Ontario Central Prison was shut down in ignominy in 1915, its once modern buildings dank and archaic and its revolutionary philosophies dated and discredited. After temporary use during World War I as a military prison, it was sold for its land value alone and, soon after, demolished. Today, a rather utilitarian-looking industrial plant occupies the site adjacent to the railway tracks in the city of Toronto, just north of the present-day Canadian National Exhibition grounds.¹

      As unlamented and largely forgotten as it is, when it opened in 1874, the Central Prison was the linchpin of the Ontario government’s new...

    • 15 ‘To Govern by Kindness’: The First Two Decades of the Mercer Reformatory for Women
      (pp. 516-572)

      In the late nineteenth century, a few jurisdictions in North America opened prisons for women, including notably Indiana, Massachusetts, and New York State. Although the number of women’s prisons would proliferate in the twentieth century, in the earlier period they were rare. It is curious, therefore, that a society as conservative in its social values as was Ontario should be one of a handful of jurisdictions to embark on what seemed to be a relatively radical experiment. Why should a society as traditional as Ontario, with a legislature dominated by rural interests and a government as cautious as that of...

  12. Index
    (pp. 573-583)
    (pp. 584-584)