THE

13

CRIMINAL LAW OF CANADA.

INTRODUCTORY CHAPTER.

THE ENGLISH CRIMINAL LAWS PREVAILING IN THE DOMINION.

COLONIES may be acquired by occupancy, conquest and cession. When a colony is acquired in either of these modes, it becomes material to consider what laws apply and are in force therein.

On the acquisition of a colony by occupancy, all English laws applicable and necessary to its state and condition are immediately in force, such as the general rules of inheritance and of protection from personal wrongs; but other provisions applicable and peculiar to a people in a more advanced state of civilization and artificial refinement are neither necessary nor convenient in a new and undeveloped country, and therefore are not in force. (a) In conquered colonies, the laws existing at the time of the conquest, except such as are contrary to the laws of

(a) Uniacke v. Dickson, 1 James, 300, per Hill, J., confirmed by Smyth v. McDonald, 1 Oldright, 274; Doe dem Anderson v. Todd, 2 U. C. Q. B. 84, per Robinson, C. J.

God, remain in force until altered by the conquering power. The latter, however, can impose on the subjugated people such laws, imperial or otherwise, as may be thought fit. (a)

In ceded colonies the same general rule prevails as in conquered colonies, except in so far as the power of the crown may be modified by the treaty on cession.

The Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, and Manitoba, are all colonies of the British Empire.

It is not perfectly clear under what modes of acquisition these respective colonies can be classed. The country was originally discovered and to some extent settled. by the French, and the latter claimed the whole territory from the Gulf of the St. Lawrence to the then unknown western wilds. By the treaty of Utrecht, signed in 1713, France ceded to England the present Provinces of Nova Scotia and New Brunswick, then called Acadia; and by the treaty of Paris, concluded in 1763, the entire territories claimed by the French, including the present Provinces of Ontario, Quebec and Manitoba, were ceded to the Imperial Crown. As to the Provinces of Ontario Manitoba and Quebec, there seems little doubt that their acquisition may be ascribed to cession founded on conquest; the two former especially, for when the treaty was ratified no settlements had been made in them.

In the case before referred to, (b) Nova Scotia seems to have been treated as a settled colony; in other words, as acquired by occupancy. If this be the correct view, New Brunswick would fall within the same class, as it and Nova Scotia formerly comprised one Province, and the division was only effected in 1784.

(a) Doe dem Anderson v. Todd, supra. (b) Uniacke v. Dickson, 1 James, 287.

It would seem that, as to the English laws prevailing in Nova Scotia and New Brunswick, they may be treated. as settled colonies. If they were treated as ceded colonies, then the laws existing at the time of the cession would remain in force until altered by the Imperial Parliament. No such alteration, at least so far as the author is aware, has been made, nor has any Imperial statute or proclamation expressly extended the English laws to these colonies. The law of England, both civil and criminal, with certain restrictions and limitations, prevails therein. The early settlers of the country must therefore have carried with them such English laws as were applicable to their condition as an infant colony. The fact that no Imperial Legislation has taken place with reference to these Provinces seems to strengthen this view, for in the case of a settled colony the Crown cannot alter or impose laws or otherwise interfere in the legislation of the country as in the case of conquest or cession. (a)

We now proceed to consider more particularly the English criminal laws prevailing in the several Provinces of the Dominion. By the Royal Proclamation of 1763, the criminal law was introduced into the Province of Quebec, as there defined, and by the Imperial Statute, 14 Geo. 3, c. 83, it was extended to the whole of the present Provinces of Ontario and Quebec. This statute, after reciting the benefits and advantages resulting from the use of the criminal law since its introduction by the proclamation of 1763, enacted that the same should continue to be administered and observed as law, "as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted." It took effect on the 1st of May,

(a) See, however, Jouett v. Lockwood, 2 Kerr, 683, per Chipman, C. J.