British and Canadian Criminal Procedure: A Short History

By Roger E Salhany

The author traces the history and development of criminal procedure in England from 1000 just before the Norman Conquest until the end of the 19th century and how it influenced criminal trial procedure in Canada.

• Language: English
• Publisher: Austin Macauley
• Release date: Apr 24, 2018
• ISBN: 9780463661918

Roger E Salhany

The author is a retired justice of the Superior Court of Ontario. A former barrister and Queen’s Counsel, he has been a lecturer to judges, lawyers, law students, administrative boards and police officers. He is the author of seven books on criminal procedure, handbook for trial judges, criminal evidence, cross-examination, the Origin of Charter rights and police investigations. His text on Canadian Criminal Procedure has been continuously published and updated annually since 1968.

Book preview

About the Author

The author is a retired justice of the Superior Court of Ontario. A former barrister and Queen’s Counsel, he has been a lecturer to judges, lawyers, law students, administrative boards and police officers. He is the author of seven books on criminal procedure, handbook for trial judges, criminal evidence, cross-examination, the Origin of Charter rights and police investigations. His text on Canadian Criminal Procedure has been continuously published and updated annually since 1968.

***

***

Dedications

To Tannis, my greatest help and support.

***

***

***

British and Canadian Criminal Procedure A Short History

Published by Austin Macauley at Smashwords

Copyright 2018, Roger E Salhany

The right of Roger E Salhany Irving to be identified as author of this work has been asserted by him in accordance with section 77 and 78 of the

Copyright, Designs and Patents Act 1988. All Rights Reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with the written permission of the publisher, or in accordance with the provisions of the Copyright Act 1956 (as amended). Any person who commits any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages.

Smashwords Edition, License Notes

This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it was not purchased for your use only, then please return to Smashwords.com and purchase your own copy. Thank you for respecting the hard work of this author.

***

A CIP catalogue record for this title is

Available from the British Library.

***

www.austinmacauley.com

***

British and Canadian Criminal Procedure A Short History, 2018

Austin Macauley Publishers Ltd.

ISBN 9781787107779 (Paperback)

ISBN 9781787107786 (E-Book)

***

First Published in 2018

Austin Macauley Publishers.LTD/

CGC-33-01, 25 Canada Square

Canary Wharf, London E14 5LQ

***

***

***

***

Acknowledgement

I would like to acknowledge the encouragement of Professor Glanville Williams, my supervisor at Cambridge University over 50 years ago, who first kindled my interest in criminal procedure.

***

Table of Contents

Chapter 1. Introduction

Chapter 2. Before The Conquest. The Sheriff. Trials. Punishments. Policing

Chapter 3. After The Conquest 1066-1154. Policing. Criminal Trials. The Curia Regis. Punishments. Ecclesiastical Courts. The Domesday Book. Succession

Chapter 4. The Plantagenet Years 1154-1399. War with the Church. Thomas Becket. Organization of the Courts. Succession. Magna Carta. Henry III. Edward I. Charter of the Forest. The Indictment. The Fourth Lateran Council in 1215. Bail Pending Trial. Appeals of Felony and Trial by Battle . The Rise of Trial by Jury. Peine Forte et Dure. Separation of the Indicting and Trying Jury. Punishments. Sanctuary. Benefit of Clergy. Attainder. The Ex Officio Oath. Quo Warranto. Informations by the Attorney General or by the Master of the Crown Office. Justices of the Peace. Edward III. Wars of the Roses

Chapter 5. The Tudor Years 1485-1603. Justices of the Peace. The Star Chamber. Beginning of Jury Independence. Trial of Sir Nicholas Throckmorton. The Beginnings of the Preliminary Inquiry. Punishments.

Chapter 6.The Stuart Years 1603-1714. Jury Independence. Trial of Sir Walter Raleigh. Judge Jeffreys and the Bloody Assize. Trial of William Penn and Walter Mead. Bushell’s Case. Search and Seizure. The Indictment. Fall of the Stuarts.

Chapter 7. The 18th And 19th Centuries. Law Enforcement. Developments in Search and Seizure. The Preliminary Inquiry. The Grand and Petit Jurors

The Courts. Prosecutions. The Rise of Defence Counsel. Punishments. Conduct of the Trial. The Right to Remain Silent.

Chapter 8. The Canadian Colonies. The Eastern Provinces: Nova Scotia. Prince Edward Island. New Brunswick. Quebec. The North-Western Territories

British Columbia. The British North America Act of 1867.

Chapter 9. The Criminal Code of 1892. Attempts at Codification. Sir James Fitzjames Stephen. Codification in Canada. Classification of Offences. Arrest. Search and Seizure. Bail. The Preliminary Inquiry. The Indictment. Sentencing. Appeals.

Chapter 10. Keepers of the Peace. Early Policing. The Statute of Labourers 1351. The Justices of the Peace Act of 1361. The Rise of Policing. Thief-Takers. Jonathan Wild. The Fielding Brothers. Patrick Colquhoun. Sir Robert Peel. Canada. Newfoundland. Toronto. Quebec. The Eastern Provinces. The West. British Columbia.

Chapter 11. Habeas Corpus. Earlier Writs. Habeas Corpus Writs. Habeas Corpus under the Tudor Kings. Habeas Corpus under the Stuart Kings. The Habeas Corpus Act of 1640. The Protectorate. John Lilburne and John Streater. The Habeas Corpus Act of 1679. Suspension of Habeas Corpus. The London Corresponding Society. The Jacobin Society. Stephen Sayre. The Slave James Somerset. Habeas Corpus Act 1862. Habeas Corpus in Canada. Pierre du Calvet. Charles Hay. Rebellions in Lower and Upper Canada. Three Quebec Judges Test Suspension. The Canadian Habeas Corpus Act of 1866.

Bibliography

Index

***

Every jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make utterly Parliament subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives. To many of us the boundaries between Whitehall and Westminster are uncertain and confused. We are anxious that government should be strong and yet fearful lest the gathering momentum of executive power crush all else that is in our State. We look for some landmark that we may say that so long as it stands, we are safe; and if it is threatened, we must resist. It is there, this beacon that seven centuries have tended.

Sir Patrick Devlin, Trial by Jury, The Hamlyn Lectures, Revised Edition, 1978 at p. 164.

***

***

***

***

Chapter 1

Introduction

It has been often said that what distinguishes the common law system of procedure from the European procedure is that the common law system is adversarial while the European system is inquisitorial. This explanation for the difference is too simple. The terms adversarial and inquisitorial are often used with some variety of meaning by different writers. Some writers draw a sharp distinction between the two systems; others ascribe a number of different characteristics to each. In fact, both systems have adversarial and inquisitorial characteristics. The real distinction between the two is the role of the judge in each system, and what and how evidence is admitted in the trial against an accused. The main feature of the inquisitorial system is the function of the examining or investigating judge (juge d’instruction), whose role it is to conduct an investigation of the crime and to decide whether the prosecution should proceed; and the function of the trial judge who plays the major role in questioning the witnesses and bringing out the evidence. Under the adversary system, the investigation is conducted by the police; the trial judge is required to sit back and listen patiently as an impartial arbiter while the prosecution and the defence present their evidence.

Until the twelfth century, the legal systems of medieval Europe generally relied upon the adversarial system to determine whether a person was guilty or innocent of a crime. The proceedings were essentially confrontative, between accuser and accused. Unless a person was caught in the act of committing a crime, he could not be tried and unless, and until, the victim or the community formally accused him. Because the penalty for making a false accusation was severe, victims and witnesses were often reluctant to make an accusation that might cause serious repercussions if the accused was found not guilty. The legal system was basically ritualistic relying upon oaths and the belief that God would side with the righteous and condemn the guilty. It was because of the difficulties in deciding cases that the community turned to procedures such as trial by ordeal or compurgation, or after the Norman Conquest, trial by combat, all appeals to God to intervene, and to punish the guilty and exonerate the innocent.

It was not until 1198, when Lotario dei Conti di Segni became Pope Innocent III, and decreed that an ecclesiastical magistrate no longer required a formal accusation to summon and try an accused, that the inquisitorial system began its influential rise and development in Europe. By not requiring a formal accusation, denunciation protected an accuser from retaliation if the case against the accused was not proven. An ecclesiastical court was now authorized to summon and interrogate witnesses of its own initiative, and to use their own testimony (often secret) to try an accused and to punish him. In 1215, the Fourth Council of the Lateran, dominated by Pope Innocent, affirmed the use of the inquisitional system to exterminate any opposition to the church. It was also decreed that the clergy were no longer to participate in trials by ordeal or compurgation, a decree which, incidentally, gave impetus to the development of the adversarial trial by jury in England. Ecclesiastical courts in Europe, operating under the inquisitional procedure, swiftly became the dominant method by which disputes were adjudicated. The effect was to last in continental Europe for almost four hundred years.

The development of the trial system was different in England. After the Norman conquest of England in 1066, William the Conqueror decreed that bishops were not to conduct church business in the local civil courts but to do so in their own separate ecclesiastical courts. Notwithstanding his decree, ecclesiastical courts still grew in strength and popularity because the punishment they administered for crimes was more lenient than in the King’s courts. A hundred years later, King Henry II, William’s great-grandson, refused to submit to the supremacy of the Pope in secular matters and decided that formal accusation, not denunciation, was to be rule in his courts. Although Henry died nine years before Innocent became Pope, the principle that a person could not be tried in the king’s court until formally accused began its development and continues to be the manner of trial throughout the common law world today.

English settlers who set out in the sixteenth and seventeenth centuries to colonize North America, the Caribbean islands, the African and Asian continents, and Australia and New Zealand, and to proselytize the indigenous people, brought with them English common law and the existing adversarial trial procedure to govern their legal affairs and to bring order to their communities. Although in some mixed civil law systems such as Scotland, Quebec and Louisiana, where the substantive law is civil in nature and evolution, the procedural codes that have developed over the last several hundred years are still based upon the English adversarial system. As each new colony grew and struggled to achieve its own unique identity, it was inevitable that they would develop their own system of courts, judicial officers, laws and rules of evidence, while looking to their mother and sister countries for ideas to develop and adapt into their judicial system.

Sir Leslie Stephen, the brother of legal scholar and Judge Sir James Fitzjames Stephen, was of the view that the development of a people is necessarily reflected in its laws, and primarily in its criminal law. Sir Leslie, writing about his brother in 1895 in Life of Sir James Fitzjames Stephen, spoke of the impossibility of discussing the peculiarities of English criminal law without being plunged into historical investigation.

He wrote that:

At every point, the system is determined by the circumstances of its growth: and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to the previous forms of life.

Not surprisingly, the common law and trial procedure that the colonies inherited from England have changed dramatically over the years. To more properly understand the Canadian criminal procedure system, it is necessary to return to the early history of the common law system and review its development and how that development has affected the way our judicial system operates today.

***

Chapter 2

Before The Conquest

An adversarial system of justice existed in the community courts of Anglo-Saxon England long before King William’s conquest in 1066. Anglo-Saxon England at the time of the Conquest was a highly decentralized country, with four main kingdoms (East Anglia, Mercia, Northumbria and Wessex) and three minor ones (Essex, Kent and Sussex). There was no king who was supreme, as there was later under the Normans. Upon the king’s death, the nobles met to choose his successor, since the Crown did not necessarily pass from father to son. The royal council called the Witan played a central, but limited, role in the administration of justice. The most important court was the Folk-moot or shire-moot – the name given to the ancient assembly of free men of the shire. As the kings, first of Mercia and then of Wessex, slowly extended their authority over the whole of England, they left the shire-moot with overall responsibility for the administration of the law.

The Anglo-Saxon kingdoms were hierarchical societies, each based on ties of allegiance between powerful nobles and lords, and their immediate followers. At the top of the social structure was the king whose household had special privileges and protection. Beneath the king were thegns or nobles, the more powerful of which maintained their own courts and were termed ealdormen. The king and the nobles were bound together for their mutual protection by the exchange of weapons and armour. Freemen, called churls (or ceorls), formed the next level of society, often holding and farming land in their own right or controlling businesses in the towns. Geburs were peasants who worked land belonging to a thegn and formed a lower class still. The very lowest class were slaves, who could be bought and sold, and who held only minimal rights.

In 1042, Edward the Confessor, the seventh son of King Ethelread the Unready, succeeded to the throne of Anglo-Saxon England when he was thirty-eight. Edward’s mother, Emma was the sister of Duke Richard II of Normandy and the great-aunt of William the Conqueror. His father, who had ruled from 978 until he was deposed in 1013, was a weak king and unable to repel the frequent Danish raids that harassed the country. After his father’s death, Edward and his brother Alfred were sent into exile in Normandy. There they had been brought up at the court of the Duchy of Normandy where he and the future William the Conqueror had become friends. In 1041, Edward was invited back to England by King Harthacanute, his half-brother, probably as heir because Harthacanute had never married, had no legitimate heirs and knew that he had not long to live. When Harthacanute died in 1042, Edward met all the nobles of England at Hursteshever, where he was received as king and crowned in Winchester Cathedral the following April in return for his oath that he would continue the laws of Cnut. His byname the Confessor came from his religious devotion in his later years resulting in his canonization in 1161.

Not a strong ruler, Edward greatly relied on his favourites, especially Godwine, the Earl of Wessex, the richest and most powerful of the English aristocrats, whose daughter Edith he married in 1045. However, Godwine’s hopes for a grandson to succeed Edward diminished as Edith remained childless. Edward, a gentle ascetic man, who probably would have preferred a monastic life, began the construction of Westminster Abbey, where he was buried in 1065. There is some dispute among historians as to the basis of William’s claim to the throne after Edward died childless. Harold, one of Goodwine’s four sons, who had succeeded his father as Earl of Wessex, claimed that King Edward had named him as his heir since there were constant threats to the succession. According to contemporary Norman chroniclers, King Edward, William’s friend of former days, had promised him the throne of England and had sent Harold to Normandy in about 1064 to take an oath confirming the promise of the succession to William. William of Poitiers, writing in the 1070s, said that at a council at Bonneville-sur-Touques, Harold had taken an oath of fealty to William in a religious ceremony that he would be proxy in King Edward’s court and would use his influence to secure the throne for William upon Edward’s death. However, no sooner was Edward in his grave than Harold claimed the throne. He was immediately elected by the thegns and proclaimed King of England on January 6, 1066. When Edward died, William, feeling doubly betrayed, prepared his plan to invade England.

On September 28, 1066 William set sail with a large army – said to be of seven thousand to eight thousand troops made up mainly of infantry – and landed in Sussex where his forces built a wooden castle at Hastings, from which they raided the surrounding area. Harold had spent mid-1066 on the south coast with a large army and fleet, waiting for William to invade. However, he was forced to rush north with his army when he learned of a Norwegian invasion on the Northeast coast led by King Harald Hardrada of Norway and supported by Harold’s own brother Tostig. Gathering forces as he went, he took the Norwegians by surprise and defeated them at the Battle of Stamford Bridge on September 25, 1066. Unfortunately, the English victory came at a great cost, as Harold’s army was left in a battered and weakened state. Scarcely had he recovered from his victory over the Norwegians than he learned that the Normans had landed at Pevensey on the south east coast. Leaving much of his forces in the north, he marched the rest of his army south to deal with the threatened Norman invasion. Fighting began at nine a.m. on Saturday, October 14, 1066 and lasted until dusk when Harald was killed and his army scattered. William then moved his army north mopping up resistance along the way and eventually arrived in London. There he was acclaimed King of England and crowned by Ealdred, the Archbishop of York on December 25, 1066 in Westminster Abbey.

The Sheriff

Shire-moot was an Anglo-Saxon institution dating back to the earliest days of English society. The Anglo-Saxons had regular meetings, or moots, for each county (or shire) where cases were heard and local matters discussed. The ‘shire-moot’ was attended by the local lords and bishops, the sheriff, and four representatives of each village. The shires themselves were divided into hundreds, so called because it originally consisted of a hundred land owners, each with their own Hundred Court and Hundred Reeve. The hundred was in turn divided into vills or townships. The shire-moot met in one or more traditional places, initially in the open air and later in a meeting hall. It was about the seventh century that the institution of the shire-reeve began. The shire–reeve (later called the sheriff) was the administrative officer of the king. His jurisdiction was limited to the particular shire, and included collecting the Royal revenue, maintaining the king’s peace, executing proclamations and writs, and apprehending and imprisoning offenders. The sheriff also presided over the shire-moot, sitting with the earl (next in importance to the king) and the bishop of the shire. Although initially elected by the community, in later Anglo-Saxon times he was appointed by the king.

The sheriff was not the judge of the court, merely its president. The judges of the court were all those who had the right and duty of attending the court. They were originally all free male inhabitants of the neighbourhood; over time, it became an obligation attached to particular holdings of land. The sessions of a shire-moot resembled more closely those of a modern local administrative body than a modern court. It could, and did, act judicially but this was not its prime function. In the shire-moot, charters and writs would be read out for all to hear. The law did not distinguish between a crime and a civil wrong. A man who had broken the law was considered to have gone to war with the community, and it was considered the duty of the community to declare war on him. He was in the eyes of the community an outlaw, to be hunted down and killed, and his property ravaged.

Trials

Before, and for a hundred years after the Conquest, prosecutions were essentially private matters between the victim and the accused. The king had no time for prosecuting or getting involved in what were considered private matters unless it involved or affected the king’s jurisdiction, his security or his purse. Disputes were left to victims or their families to pursue justice, by self-help or in the local courts. Trials were conducted without the necessity of formal documents. Members of the community greeted the dignitaries that arrived to conduct the business of the community – all the king’s representatives, including the mayors, alderman, and knights. There was no such thing as equality before the law. A man’s rights depended upon his social status, and in some cases, on the custom of his neighbourhood. An aggrieved person would appear and make his accusation before the assembled dignitaries; no formal accusation was necessary. The accused would then be required to answer whether or not he was guilty. With the arrival of Norman kings and the introduction of the inquest, it was only natural that some form of document would be required to put the machinery of justice in motion.

Punishments

The preservation of peace was an important feature of Anglo-Saxon law. Persons who committed certain crimes lost whatever protection they had under the law, forfeited whatever property they owned, and could be killed by anyone. Since there were no jails, the only penalties imposed were fines, mutilation, or death. Anglo-Saxon settlers brought with them the Germanic system of blood feud which became the main mechanism for resolving disputes. A death or a wounding would usually lead to a blood feud between the friends and family of the victim and his killer or assailant. Relatives of a victim were expected to avenge him; not to avenge the death or wounding of a family member was considered a social disgrace by the community. There was no law against vengeance, which was tolerated but not necessarily approved. To reduce the number of revenge killings, one of the aims of the law was to substitute financial compensation. Later laws reflected the growing influence of the church with the introduction of fines for offences against ecclesiastical officials, and a preference for mutilation over the death penalty in order to give the offender time to repent.

Financial compensation was paid to the victim or the victim’s family, while a fine was also paid to the king’s reeve. The scale of compensation was laid down by each community. Since blood feuds were costly, there developed an alternative to resolving disputes by mediation between the victim or his family and the aggressor. The two alternatives for ending blood feuds were by paying the price of a man’s death or injury, or by arranging a marriage. The feud could be overridden by a money payment from the offender or his tribe to the family of the victim called a wer or wergild; the wer was the value placed on a man’s life depending upon his rank. The offender was able to buy back the peace he had broken with a money payment to the victim, or his family, or relatives. If the guilty man did not pay the wer imposed or his fine, or if his family refused, or was unable to pay, he was declared an outlaw; anyone could kill him, and anyone who helped him could receive a heavy fine, or worse.

The price for killing a lord was the highest; the wergild for a thane (nobleman) was less; and lower still was the payment for a free farmer. The lowest wergild was for a slave, which would be payable, not to the slave’s family, but to his lord. Of course, the value of the wer would vary from community to community. The offender would also be required to pay a penal fine, called a wite, to the king or some public authority to atone for the person’s death. Payment for only an injury to a victim was called a botgeld.

Policing

Members of the community had various duties and responsibilities. They were responsible for their neighbour’s safety and the security of the community. Whenever a crime was committed, the hue and cry was raised and everyone was expected to turn out with bows, arrows and knives which they were obliged to keep as members of the community. Blowing their horns, they would all go from vill to vill pursuing the felon until he was caught. If he was captured with stolen goods on him or in his hands, he would be bound and brought back before the court, tried summarily and hanged or beheaded. There was no need for any formal accusation against him such as an indictment. Summary justice was based on the belief that a person taken with the stolen goods in hand was not entitled to the protection of the law. The only thing he could contest was that he was not arrested during the hue and cry and was entitled to a hearing before the whole community to prove his innocence. The most common punishments were fines or flogging. Serious crimes like treason and arson carried the death penalty – usually hanging. Re-offenders suffered harsh punishment, often mutilation. Being