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Law and Justice
By: Louis A. Knafla
Our knowledge of law and justice in the Saskatchewan region dates from European contact in the mid-18th century. First, fur traders of Britain’s Hudson’s Bay Company (HBC), and then later the French North West Company (NWC), made their way from Hudson Bay and Lake Winnipeg up the Churchill, North and South Saskatchewan, and the Assiniboine and Qu’Appelle rivers into the heartland of the Canadian Prairies. A commingling of British common law, martial law, and master-servant relations governed the official criminal justice system of the HBC, while French civil and British criminal law comprised that of the NWC. Both of these systems were foreign to the indigenous customary law that governed relations between and within tribal societies, as well as to the habits of the immigrant peoples who settled the prairies. The history of law and justice is the story of how those disparate elements were eventually moulded into a criminal justice system.
The roots of crime and violence lay in local families, their communities and working relationships. Such roots underlay all European as well as North American societies. The customary law of the “blood feud” was the original justice system that governed violent actions in these societies: from the ancient Lombards and Visigoths to the Frankish and Anglo-Saxon kingdoms of the 6th century, to the Norman and English societies of the 12th century, to Scottish society of the late 17th, and North American Native societies for a long time. Since many fur traders were Scottish, they would have been familiar with the blood feud they encountered among Aboriginal peoples. The basic tenet of blood feud justice was compensation: all crimes, and even accidental deaths, were to be settled by compensation to the victim. The “blood feud” was a last resort, to be exercised by the kin of the victim against the kin of the perpetrator when the payment of compensation failed (i.e., could not be agreed upon). This blood feud justice was probably more successful than our modern criminal justice system in ameliorating the losses suffered by victims of crime and in restoring peace to the community: in the vast majority of all crimes, both kin groups were forced to come to an accommodation on the terms of compensation in a situation where individuals, families, and communities had to bring closure to violent acts.
From the outset, the HBC had complete jurisdiction of all criminal offences in Rupert’s Land. The Board of Governors in London made the laws; its post “chief factors” were ex officio Justices of the Peace (JPs), and the post “councils” its grand jury. Its chief concerns were to regulate the behaviour of its employees, to prevent them from consorting with “country wives,” and to prosecute sexual liaisons, whether male or female. Punishment was by the lash, imprisonment, or transportation to a foreign island. Thus the HBC used a mixture of common law, martial law (of the British navy), and master-servant law in handling crimes where both parties were British. Where there was a criminal trial, it was held aboard an anchored ship on Hudson Bay that flew the “King’s Jack,” where for employees the company logo stood for “Here Before Christ.” They expected rough justice, British style: solitary confinement and brutal, multiple whippings with the cat o’nine tails for minor offences; and hangings for capital ones. The HBC, however, recognized Native peoples as First Nations, and in what they termed Indian Territories exercised discretion according to “local custom.”
This was the custom that the HBC, and later the NWC, brought into the Saskatchewan area when traders paddled up the rivers flowing into Hudson Bay in the 1740s—what Chief Factor Peter Ogden later called “the custom of the country.” Justice, according to the blood feud, allowed company men, middlemen, and Natives to interact with one another on a relatively level playing field when it came to handling a matter of crime; it was also surprisingly effective in maintaining law and order in a vast and lightly settled landscape of differing peoples and nationalities.
The fur trade Era, 1750-1869
The French established fur trading posts at Fort Paskoyac on the Saskatchewan River about 1750, at Fort St Louis (Nipawin) in 1753, and at Fort à la Corne in 1754; this resulted in a booming trade that was rife with alcohol and conflict. Later posts at Lake Athabasca in 1778, Lac la Ronge by 1779, and Fort Espérance in 1783 had more peaceful relations. The criminal justice policy of the NWC was to adopt Native customary law. The British HBC founded posts at Fairford House in 1795 and at Bedford House, on Reindeer Lake, in 1796. Carleton and Cumberland House, both established on the Saskatchewan River in 1793, and Fort Pitt later in 1829, became their major trading posts and were still vigorous by 1878. Surviving post journals reveal an administration of justice for company employees that was based on naval discipline and martial law. Chief factors brought order to disorderly posts with what one might call the law of necessity, beating employees with fists or clapping them in irons as discretion required. Official British law was seldom used. Thus, in a sense, the trading companies used their own informal system of justice when dealing with their own people.
In the first reported use of the blood feud, in 1754, Aboriginals who killed five HBC employees were sent for trial to Albany House and hanged as an example; there were no retributions. In 1778, when a Cree at Pangman Post on the North Saskatchewan River was poisoned by John Cole and a group of HBC traders, the latter were killed by the Cree in blood feud; HBC officers reported that justice had been done. But when Peter Pond, an interloper, killed a British man in a duel near Lake Athabasca in 1775, and another at LAC LA RONGE in 1781, he was sent to Montreal for a criminal trial. What is surprising is how few crimes were reported in either company records or personal journals, which exist in large numbers.
The justice system changed with the Canada Jurisdiction Act of 1803, caused by an incident on the North Saskatchewan River at Fort de l’Isle. An employee of the XY Company (USA) killed an NWC trader in a theft dispute in 1802, and was sent for trial to Lower Canada. The resulting Act held that all crimes committed in Rupert’s Land were to be tried in the superior courts of Lower or Upper Canada; it also allowed for local posses to search for suspects. In reality, the Act only applied to the Manitoba area; and with the new Canada Criminal and Civil Jurisdiction Act of 1821, the “private law” system of the HBC (which had amalgamated with the NWC), based on the custom of the country, was upheld and confirmed. While the Recorder of Rupert’s Land, Adam Thom, appointed to the General Quarterly Court of the Red River colony of Assiniboia in 1839, claimed criminal jurisdiction throughout Rupert’s Land, he seldom exercised it west of the colony; he charged the grand jury that any crimes committed beyond the colony should be handled by local custom—“the law of the land.”
According to John Rowand, chief trader of the Athabasca district, the blood feud remained the customary practice for criminal offences throughout the region in the first half of the 19th century. Rowand himself was shot by an associate in 1854. His son, John Jr., failed to avenge his father for the family, but a Métis friend tracked down the associate three days later and shot him; there was no retribution from the killer’s family. This practice was confirmed by Governor Sir George Simpson before a British parliamentary Select Committee in 1857. It was also later confirmed as settled custom by the Supreme Court in Regina v Haatq als Aht (1884). Criminal activity, however, remained slight: only nine cases of homicide were reported for Rupert’s Land between 1821 and 1857, of which eight charged were found not guilty.
The Territorial Era, 1870-1905
The era of the HBC came to an end in 1868, when the British Parliament granted Rupert’s Land to the Dominion of Canada. In the following year, Parliament created the province of Manitoba; the area west to British Columbia, converted into the North-West Territories (NWT), continued the laws that had been observed until then. The Territories became part of Canada in 1870, and officers of the HBC became its JPs for the administration of criminal law in 1871. A legal system emerged in 1873 when the new Lieutenant-Governor was authorized to appoint coroners, JPs and Stipendiary Magistrates (SMs), as well as to construct jails and prisons, and the Governor in Council was authorized to enact ordinances and statutes for the regulation of public offences.
The immediate problem for law and justice in the Saskatchewan district in 1870 was that JPs who were former HBC officials had no knowledge of English or Canadian criminal law. They also had no personnel for law enforcement, and were required to prepare and implement all the paper work for the execution of legal process. Thus the Administration of Justice Act in 1873 provided not only for professional justices (SMs), but also for a professional police force: the North-West Mounted Police (NWMP). While SMs were empowered to hear non-capital criminal cases, capital ones were reserved to the courts in Manitoba; and while the NWMP were agents of the Dominion, in actual fact they were local officers who served the same local interests as the JPs of Assiniboia.
The creation of the NWMP coincided with the Cypress Hills Massacre of May 1873. The event was both fact and myth: “depraved savages” who stole horses, local police who would not hunt them down, and drunken American ruffians who slaughtered the offending Natives. Lacking reliable accounts, the violence boiled down to three costly rounds of gunfire; the Natives eventually lost, and had their heads cut off and mounted on poles for display. The Americans involved went back across the border, and two years later Colonel J.F. Macleod resolved an international incident by traveling to Helena, Montana, to gain their extradition to Canada. The offenders were tried and released, and the last indictments were dismissed in March 1882.
The NWMP was an Imperial, paramilitary force modeled after the Irish Constabulary and the French gendarmes. Their original legal duties were to enforce judicial writs and notices, act as jailers, and deliver prisoners to NWMP guardhouses for trial before their police courts. Each patrol covered 170,000 miles a year. The first court was held by Inspector L.N.F. Crozier at Fort Carleton in 1875; the second by Superintendent W.M. Herchmer at Fort Pitt in 1876; and the third by Commissioner Macleod at Fort Walsh in the same year. Non-commissioned officers acted as prosecutors, and constables as jail-keepers. The early prosecutions were primarily for Natives, Métis and traders charged with assault, theft, or liquor violations. Most charges came from informers, who received half of the fines levied.
Commissioner Macleod insisted on hard evidence for all convictions, no hearsay testimony, and release with warnings for most first offenders; otherwise he insisted on stiff penalties, which included fines of up to $200 plus costs. His purpose was to develop a society where such offences would not be committed. These magistrates, including Lieutenant Colonel Hugh Richardson at Battleford and Regina, and Commissioner A.G. Irvine at Fort Walsh, had extensive powers. The accused in major criminal cases could choose trial by jury, with six jurors forming the panel. Judges could sentence up to five years with hard Labour; in general, however, the caseload was minimal, suggesting that the early frontier was not as violent as some historians have suggested.
Police courts in the Saskatchewan area prosecuted nearly 5,600 cases between 1874 and 1898, of which approximately 60% were by NWMP magistrates and 40% by civilian magistrates. Thus these lower courts heard about 224 cases yearly. Most of the cases involved the whisky trade, cattle and horse theft, prostitution, fighting, and gun battles. Where reports have survived, each case was heavily documented. Natives and Métis received leniency as the courts wished to accommodate them as Aboriginal peoples. If there was a bias at all, it was in handling local officials: when for example an HBC wagon train from Fort Garry was stopped outside of Fort Walsh for inspection and twenty-four gallons of illegal alcohol were found, no prosecution ensued.
The largest number of prosecutions in the early years occurred in the southwest, where Fort Walsh had 65% of the criminal cases; but the area’s average was only 36 annually. The major change came in 1880, when charges in Commissioner Irvine’s era (1880-86) increased by 500%. The focus was on new settlers, who occupied 87% of the criminal calendar; the magistrates wanted immigrants to learn quickly what would not be tolerated. The heavy calendars were now at Regina, Battleford and Prince Albert, and the conviction rate 73%. By the 1890s, liquor offences were most prevalent, civilian magistrates now carried the load (over 70% of the prosecutions), and the severity of punishments declined. Saskatchewan was looking more like a settled country.
When the Supreme Court of the North-West Territories was created by the Dominion Parliament in 1886, SMs became its judges. Judicial districts for the Saskatchewan area were established for East Assiniboia, Moosomin-Regina, and Battleford. The court system for criminal law was now in the hands of local JPs, SMs, police magistrates of the NWMP, five judges of the Supreme Court who sat in the headquarters of their judicial districts, and the judges who sat en banc to hear appeals from lower courts. Supreme Court judges rode in pairs for the assize circuits for each district. According to the Act of 1886, the law of the Territories was now the law of England as of 1870. But in practice little changed, as magistrates and judges were already following English criminal law and treatises where local circumstances were favourable. The Supreme Court heard few criminal cases for the Saskatchewan area, perhaps a dozen a year, and most of those on appeal. As before, magistrates worked to settle disputes; when they could not settle, they prosecuted and sentenced with vigilance.
The major figure was Justice Edward Ludlow Wetmore, who rode the Eastern Assiniboia judicial circuit from Moosomin between 1887 and 1897, the Saskatchewan circuit from Battleford between 1897 and 1907, and was the new province’s first chief justice from 1907 to 1912. A prominent lawyer, mayor, and MLA from Fredericton, New Brunswick, Wetmore became an outstanding jurist: an expert in criminal procedure, he brought modern rules of legal process into the courtroom, with clear and cogent written judgments that became legal precedent for the region. He assisted in drafting territorial ordinances, and upheld Native customs and the rights of minorities. Court calendars were punctual, legal chicanery was not tolerated, and his jurisprudence was seldom challenged. Only 4% of his verdicts were appealed, and only 20% of those were reversed.
Criminal activity was intermittent in the first two decades of the territorial era, and more than a quarter of the prosecutions involved Native peoples. The most frequent crime was horse stealing, and the second was violation of the liquor laws, which included drunkenness; both crimes had a heavy Aboriginal involvement. Such prosecutions involved a clash of two legal systems, as according to Native custom horse theft was on one hand a form of war, and on the other a display of male virility—an act to be praised. This changed by the 1890s when the NWMP clamped down on Natives through the influence of the Department of Indian Affairs (DIA), which wanted to show the United States that Canada could control its people. Montana businessmen were encouraged to inform on Natives who sold them stolen horses and purchased liquor to bring back across the border. When thirty-three horses were stolen from T.G. Baker of Montana and brought across the border, the NWMP sentenced eleven Natives to two-year sentences in Stony Mountain Penitentiary. The result was that increased NWMP manpower, patrols, and co-operation with the DIA and US army, coupled with stiff punishments, brought a decline in horse theft and Native trials by the 1890s.
Other crimes, however, went almost unnoticed by the NWMP. Apart from violent crimes against the peace, most assaults, property crimes, and moral offences were often ignored and not included in annual reports. While some assaults were prosecuted and given small fines, gambling, prostitution, narcotics, sports on the Sabbath, and white-collar crime went unnoticed—as did abortion and infanticide. The two exceptions, which they attempted to enforce at the turn of the century but soon lost interest in, were vagrancy, which JPs prosecuted as a socio-economic crime, and bawdy houses. Perhaps a major reason for this paradigm is that the NWMP established posts in immigrant villages and colonies as soon as they were established, using their influence to assist families in meeting the challenges of prairie life as well as instructing them on what activities would or would not be condoned.
Changes did occur after the introduction of the Criminal Code of Canada in 1892. Native customs became secondary to the exercise of a federal criminal law; confessions obtained by agents of the DIA were less likely to be admissible; the burden of proof in theft of horses and cattle was onerous; husband-wife testimony was circumscribed in domestic disputes; and an “unchaste character” could bring failure to convict in sexual offences. In addition, a new English definition of mens rea meant that the accused had to “know” exactly the consequences of his/her actions: just shooting or taking something was not “intent” in itself. Thus there was less judicial discretion in the criminal justice system than before, and fewer prosecutions per capita. People were less reluctant to make complaints to JPs, and prosecutors were less willing to indict.
There were, however, exceptions as the judges still adhered to a principle of old English law that the “black letter” did not apply when local customs were deemed more relevant. For example, when the Territorial Legislature enacted the “Prairie Fire Ordinance” in 1898, the Canadian Pacific and other railways became liable for the prairie fires caused by their locomotives, even though they were beyond local jurisdiction; Justice Wetmore saw to that. Local circumstances also circumvented the law when it was unwarranted. For example in 1879, as Prince Albert wanted a telegraph station, the HBC said that it could be erected only at its post two miles away, but the federal government said it would provide the services if the town would supply the poles. When HBC strung the poles to its post, over 100 citizens dug them out and piled them in the town. Ten of the leaders were arrested, and the HBC-appointed JP found them guilty. As the eight town policemen could not control the crowd which stormed the courtroom in protest and forced the JP out the window, the HBC relented and the station was placed in the town.
Local unrest was highlighted in the Riel Rebellion of spring 1885, a war that pitted Métis and Natives led by Louis Riel, Gabriel Dumont, and Poundmaker against mounted police and Militia near the banks of the South Saskatchewan River. Riel was defending a new provisional government for his people at Batoche, and attempting to settle land claims with the Dominion. The Rebellion was triggered by the “Frog Lake Massacre,” where an HBC post was demolished with the loss of ten lives. The Rebellion itself was a tragedy of wasted human life and demolished farms and communities. At the ensuing trials, James Prendergast, later Chief Justice of Manitoba, was called upon by Archbishop Taché to serve as defense counsel for forty-two Natives and Métis who were charged at Regina with treason in the Rebellion. He persuaded them to plead guilty as a group to petty treason; after much wrangling they agreed, and forty received short prison terms while two were released. A study of all the trials has concluded that no irregularities occurred. Riel’s treason trial was a major event in the history of the town as thousands of Natives and Métis came to witness the proceedings. While considered by some a political trial, the charge and venue were legitimate, the jury was scrupulously selected, and 107 days were allowed for appeals. The insanity issue for Riel, who was hanged, will however never be successfully resolved. But in spite of great fear, no further violence ensued. Reparations were given, the territorial budget was doubled, and settlements rebuilt.
Law and justice was often dispensed with equality. In July 1889, Motow, a Cree man, was tried before Judge Richardson in Battleford for attempted rape and indecent assault against a 15-year-old White girl at Qu’Appelle. Richardson, known as an impartial judge, had a jury of eight instead of six, and appointed a Métis JP to sit as an associate. The jurors convicted Motow, who had pleaded drunkenness, of indecent assault; he was sentenced to three months hard labour (maximum two years) and twelve lashes because the evidence against him was slim. But in the following year, when a White man was accused of raping a respectable mixed-blood woman, Richardson instructed the jurors to view the evidence regardless of race. When they found him guilty and he was sentenced to three years at Stony Mountain, the Regina Leader praised the judge’s sentence.
In 1892, a 13-year-old girl in Qu’Appelle claimed she was raped by a “half-breed” on her way from church. Richardson, summoning a jury of twelve in Regina, allowed the testimony in Cree with translation for the jury. The accused pleaded not guilty with the claim that Native women were promiscuous. After Richardson explained the law of “unlawful carnal knowledge” to the jurors, they found the man guilty but recommended mercy because he was unfamiliar with the law: Richardson sentenced him to five years and twenty lashes. Four years later the Supreme Court made this a precedent by holding that the common law applied universally, but that the “ignorance of law” defense by Native peoples could bring a reduced sentence.
Co-operation with American authorities and local immigrant communities was always at the top of mounted police policy. In 1888, three Frenchmen stole some horses at Wolsley and, after shooting dead the farmer and the constable who had tracked them down, escaped to the US. Two of them were discovered and arrested, and Justice Wetmore had them extradited to the NWT, where he had them tried, convicted, and hanged: Macleod’s previous efforts to work with the US authorities was thus reciprocated. At the turn of the century, the new Barr Colony had conflicts with people in Battleford. The NWMP went in, were boarded in local homes, dispensed rations, and avoided further violence. Likewise, Mormons who practiced polygamy were normally not prosecuted. As for Doukhobors in the Battleford and Yorkton areas who did not believe in government regulations, they were sometimes arrested and tried, sometimes not; sometimes jailed as vagrants, and sometimes sent to asylums. In any case, the patience of the police was always tested.
The US boundary had contributed to considerable violence since the 1870s. Cattle rustling, horse theft and liquor running were frequent crimes, and finding witnesses and evidence was difficult. Informers helped, but sometimes they informed simply for their own financial benefit. The NWMP controlled the border by issuing passes, and also served as customs and quarantine agents. The 630-mile border over open range and badlands was porous, and the gangs of Butch Henry, Nelson and the Jones Boys, and Fred McBeth were often caught, tried, and released on technicalities. Charlie Parmer, an associate of Jesse James, crossed the border in 1905 to retire with his son Earl and a daughter on a homestead at Dundurn. Living in a log and sod shack, and sleeping with his revolver under his pillow, he left a legion of stories with his death in 1935.
The late 19th century was, in one sense, an era of male criminality. The gender issue can be seen in the number of criminal indictments for juvenile offenders (under the age of 21) in the 1890s: 98% were males. The first prison in the area was constructed at Regina in 1885-86, and it was accompanied with an asylum. A similar institution soon followed at Prince Albert. The guiding principle of these institutions was punishment: the prisons were managed in a military manner, with strict discipline. They were also to be self-sufficient, and turned their inmates into farm work crews. The search for justice, however, required more effort in a rapidly growing immigrant population with a more complex market economy. Thus it is no surprise that indictable offences doubled in the years 1893-96, and that the conviction rate rose to 85%. Increased use of informers by the NWMP ensured that major crimes would be prosecuted and sufficient evidence gained for conviction.
The Agrarian Era, 1905–49
In its first decade the province, through Crown prosecutors, jurors, JPs and judges, took a tough approach on criminal offenders with a conviction rate of over 80%. This was complemented by the NWMP, who worked closely with immigrants to draw the line between acceptable and unacceptable behaviour. Ukrainians, for example, considered simple assaults, drunkenness, incest, and domestic violence as personal and family matters rather than affairs of the public state; thus the NWMP usually tried to mediate such acts rather than prosecute. But no such favours were shown to French immigrants at Duck Lake, or to Jewish ones at Qu’Appelle, whom the NWMP considered as lazy and not deserving of judicial discretion. Police leniency with labour may account for the fact that there was locally little violent labour unrest in the upheaval of 1919-24, compared to the rest of western Canada.
This approach to law and justice was enforced with penality. A jail was built at Moosomin in 1908, the Regina jail opened in 1915, and Prince Albert’s in 1921; they were used not only for violent offenders, but also for those who bore the brunt of class, racial and religious discrimination. These included, especially by the 1930s, workers on strike, Doubhobors, Jehovah’s Witnesses, Orientals, and Communists. For example Peter Veregin, leader of the Doukhobor colonies in Saskatchewan and organizer of the Sons of Freedom breakaway group, was in and out of jail for assault, disturbing the peace, and riot from the day of his arrival from Siberia in 1903 until his deportation from Prince Albert jail in February 1933.
The territorial court system did not change immediately with the creation of the province. Once the provincial government was formed, the Legislature under the direction of Wetmore and Frederick Haultain created a new court system: a Supreme Court of King’s Bench with six judges, and a Court of Appeal with four. The goal was public access for complaints, diligent prosecution and evidence-gathering, and more jurors for the primarily Rural Population. Thus the districts were increased to eight in 1907, fifteen in 1915, and twenty in 1920. The same goal governed appeals: there were three districts for the appeal of criminal trials, centred in Regina, Moose Jaw, and Saskatoon.
Perhaps the most outstanding justice in the history of the province was Chief Justice Frederick Haultain. English-born, he was raised in Peterborough, Ontario and admitted to the Ontario bar in 1882. He established a law practice in Fort Macleod in 1884, and was Premier of the North-West Territories in Regina from 1891 to 1905. He was the opposition leader of the Provincial Rights Party between 1905 and 1912, became Chief Justice of the Saskatchewan King’s Bench in 1912, and was Chief Justice of the Court of Appeal from 1917 to 1938. Haultain kept his ear to the ground, and was responsible for adapting the criminal justice system to the socio-economic reality of his era.
Magistrate Joseph Emile Lussier, the “Flying Magistrate of the North” from 1927 to 1957, lost only 11 of 362 jury cases as a defense counsel in Prince Albert between 1913 and 1927. This placed him in a unique role as an itinerant judge in a region of Native peoples, where he relied on discretion in administering law and justice. His imperative was not to impose common law on the Natives, but to improve human relations by adapting the law to local circumstances. A progressive reformer, he often sat in court without gown, and relied on fines and community service instead of prison.
Perhaps the best test of law and justice is how it processes capital crimes. Murder was not taken lightly by the courts, especially where the victim was the wife of the accused. When John Ireland, an invalid farmer, was tried for his wife’s murder in Noseby before the Supreme Court in 1914, witnesses testified that he had often beaten her and threatened to kill her. After shooting her in the back of the head as she was washing dishes, he pleaded clemency for the hard life that had caused their domestic problems. The same plea was made by Harvey Clare, who locked his wife, her in-laws and children in their Manor farmstead in 1934, and set fire to it. Both men were found guilty, to be hanged, but Clare was reprieved to life imprisonment.
A wife’s murder of her husband, however, could be more problematic. Catherine Tratch, a Ukrainian mother of eight, poisoned her husband with strychnine at Fish Creek in 1924; she claimed that a neighbour encouraged her to do so. Tried before the King’s Bench at Prince Albert, her only defense was motherhood, and the judge found her guilty, to be hanged. While the judge warned the Minister of Justice that her defense was “based on ignorance,” a public campaign for clemency that included Catholic and Anglican churches brought a commutation to life imprisonment; she was released in 1938. The murder of adults or children by women was seldom prosecuted. Only nineteen women were charged with the crime of murder or shooting with intent to kill between 1889 and 1940, and they were either acquitted or found guilty of manslaughter. Likewise, twenty-four were charged with infanticide but none was convicted.
Annie Rubletz’s conviction for smothering her child in 1940 brought a clemency campaign and retrial that made national headlines, resulting in the Criminal Code being amended to make infanticide a female category of murder. In the trial at Yorkton, the jury attempted several times to ask the judge for ways to avoid a murder conviction. A reluctant guilty verdict by the jury caused a popular uproar. The girl was deemed to be of low mentality, weak character, and low morality (she had borne her brother’s child the year before), living in poor conditions, and from a dysfunctional family. Petitions from churches and the businesswomen’s association blamed her seducer, suggesting she needed guidance rather than death. The Appeal Court repealed her conviction, and she served one year at Battleford Prison.
The five women charged with murder in the Regina district were all acquitted. The most famous case occurred in the Supreme Court at Regina in 1913. A 22-year-old English farm wife was charged with conspiracy in murdering her aged husband in Pense with the help of her young lover, who committed suicide afterwards. She confessed, but it was ruled inadmissible. Newspapers published evidence of her complicity, including her own letters, but a compassionate jury found her not guilty. In another case, when in 1928 a Romanian housewife shot her husband in the back of the head with a revolver while he was eating pastries, his record of drunkenness and woman-beating brought her a suspended sentence.
In 1917, a Hungarian wife and mother charged her husband’s former hired hand with raping her in the barn after locking the children in the house. Tried before the King’s Bench at Regina, the accused claimed that he habitually slept and ate in the farmhouse, and that they had frequent consensual sex wherever her husband was away. As the jurors were all Hungarian, they acquitted him. Class and ethnicity also entered into the prosecution of a German farm labourer for raping four girls under the age of 14 in Regina between 1918 and 1922: as cross-examination revealed that the accused was one of several participants, all German, the jurors regarded the acts as consensual and acquitted him.
Cases such as these shaped popular understandings of sexual violence by holding that the criminal law did not discriminate on the basis of race or gender, but they did not reflect the same understandings regarding class or ethnicity. For example, in a study of sexual offences on the prairies between 1886 and 1940 by agricultural labourers as well as farmers and farmers’ sons, of the cases that proceeded to trial 70% of the former were convicted and only 39% of the latter. The former, moreover, faced sentences of six months to ten years, while the latter seldom received more than a few months in jail. When a farmer of Strasbourg was sentenced to fifteen months in a solid case of attempted rape, the Morning Leader explained that the light sentence was necessary because he was married with seven children. Thus patriarchy and paternalism were of no protection to women who had been violated. But when a 15-year-old servant girl charged a labourer with rape at a farmhouse outside of Regina, his admission of drinking and use of foul language in court brought him a conviction and sentence of ten years in the Prince Alberta Penitentiary, even though she had managed to preserve her virginity.
In most of these cases the victim or accused were recent immigrants from non-English-speaking countries. When communities such as the Ukrainians had strong convictions against hired hands violating their daughters, the courts often acquiesced. Thus when a Ukrainian farmer near Regina accused his hired hand of abducting his daughter, the Supreme Court held that the daughter’s consent was irrelevant. The fact that they had slept together on numerous occasions and that she had slept with a previous farmhand was also irrelevant: the accused, arrested with his “fiancée” in Southey while obtaining a marriage license, was convicted and sentenced to three months with hard labour.
In Regina, the Supreme Court tried two men in 1926 of having unlawful carnal knowledge of, or sexually assaulting, immigrant working-class young women. The common meeting place was the Palace Café. The verdicts were not guilty, with warnings to the men (one was married) to refrain from entertaining young “flappers.” A similar case, involving the rape of a young Austro-French woman in Moose Jaw by two men, failed because the accused attacked successfully the moral reputation of the victim. Young women who worked in the cities had little hope of successful prosecutions for seduction, and such cases rarely made it to trial. When a 17-year-old woman of Regina was seduced and impregnated by an engaged man in 1923, the King’s Bench trial turned on her going to cafés, skating rinks, and picture shows: this enabled the defense to claim that she was a sexually deviant girl who tried to force a respectable engaged man to marry her. The charges were withdrawn from the jury. When a 22-year-old graduate nurse was raped on a drive home to Moose Jaw in 1928, the defense argued that no grown woman could possibly be raped; the jury convicted on attempted rape, and the judge gave the accused only five months in prison with hard labour.
The problems of immigrants and the law were even more precarious with the Chinese. Mostly male, living in small communities, working in unskilled jobs, and speaking a language that was incomprehensible to non-Orientals, they were denied the vote in 1907. A Regina public health bylaw in that same year also discriminated against them in “stagnant water” cases involving their laundries. In a case of alleged arsenic poisoning in Regina’s Capital Restaurant the same year, a neighbouring Chinese restaurateur was accused of supplying the poisoned porridge. Scared, he escaped, and every Chinese male in the town was rounded up. When fourteen of those arrested filed a suit of unlawful arrest against the mayor, chief of police, two town policemen, and an NWMP officer, they all won considerable damages. In the end, there was no evidence against the one man charged, and he was acquitted; the real perpetrator was never found.
Cases such as these demonstrate that the mounted police had always been hesitant to enforce municipal and provincial laws, especially when they bordered on social practice. In 1906 the province created a “secret service” of special constables to enforce its liquor legislation. Called “whisky spotters,” they had offices in Regina, Weyburn, Saskatoon and Prince Albert. Thus when the province enacted the prohibition law in 1916 and the mounted police would not enforce it, the province formed the Saskatchewan Provincial Police (SPP) in the next year to enforce prohibition along with game and fire acts, school attendance, and public entertainment. The SPP, however, became involved in improper political influence, made few prosecutions, and did nothing on the crime front: thus their abolition in 1928, after prohibition ended in 1924, was not unexpected.
Another problem occurred during World War I: prosecuting the war effort on the home front. Stephen Malezewski, a Canora lawyer of Polish birth, collected stories of immigrant farmers who were the victims of extortion because of their German or Ukrainian background from the Austro-Hungarian Empire. They were called “Galicans” or “Ruthenians,” and he along with others was charged with bribery and threatened with deportation. In the end, there was only one conviction, in 1920; Malezewski was simply one of many who were called “enemy aliens” because of their birth or heritage. What is significant is that the mounted police were thwarted by their own witnesses, who were also immigrants. Policing of an even less savoury kind emerged in World War II. A group calling itself the Saskatchewan Veterans Civil Security Corps organized men deferred from military service to patrol the “Home Front.” Drawn along military lines and headquartered at Regina, they grew to 6,500, spread over 216 primarily rural locations, drilled as a paramilitary police, and organized cavalcades and shooting competitions. Seeing themselves as “nativist” (in particular, anti-German, Russian, and Oriental), their goal was to fight pacifists and those disaffected by the war. They made false charges and false arrests, and at times terrorized some of the population; but a lack of funds and public support brought about their demise.
The inter-war years were not prosperous for the prairies, but violence on the labour front was relatively muted given the Depression of the 1920s and 1930s, especially as so much of the labour consisted of foreign immigrants. In the Estevan miners’ strike of autumn 1931, the police refused them access to the business district; a battle ensued, in which three rioters were shot and killed. This was a forerunner of the Regina Riot of July 1935 during the “On-to-Ottawa Trek,” when 500 strikers rioted on Dominion Day, and six were shot and one killed. But there was no aftermath. When farmers called a strike in 1939 over an inadequate government wheat price agreement, they struck and demonstrated, but no violence took place.
Discrimination against workers representing ethnic minorities was replicated with Oriental businesses. A provincial act of 1912 barred White women from working for Oriental establishments. In 1924 Yee Clun applied to the Regina city council for a permit to employ White women who were more than willing to work for him. While he eventually won his permit, a group promoting “White Women’s Labour Law” continued to influence the council until the Act’s eventual repeal in 1969. Thus, in the absence of equality and human rights legislation, law and justice were impeded by local circumstances.
It was often the local police, and not the heirs of the NWMP, who were unwilling to accord the full letter of the law to minority people. This problem was finally put to rest by Chief Justice James T. Brown in 1933. In R v Bohun (SCS 1933), he heard a brutal murder case where a young, immature man, speaking limited English, was caught and accused of murder after a manhunt. Police asked him to do and say certain things, including making a confession, that were not voluntary. Brown not only dismissed the charge, but also wrote a memorandum to the commissioner of provincial police, setting down guidelines for handling accused people. This was considered a prime example of judicial legislation where authorities failed to heed common law principles of judicial process.
The courts, however, were much less willing to interfere in family matters in spite of pressures from local prosecutors. Abortion became much more heavily prosecuted in the inter-war years: studies show that the conviction rate on the prairies was 36% from 1874 to 1916, and 61% from 1919 to 1939. A series of five cases in the King’s Bench in 1920-21 centred on the activities of Jeanette Swift, a married woman and nurse, and William Bundy, an advertising manager who served as a procurer. While several of the women who underwent the procedures were given suspended sentences, Bundy pleaded guilty and was sentenced to eight months and fined $10; Swift pleaded the same and was sentenced to six months; another male procurer received four months. The court was cautious in these cases, even though Swift produced a catalogue of abortions she had performed on married women in rural areas, and on young single women in Regina. Such sentences suggest that judges were hesitant to interfere in intimate aspects of patriarchal life.
Indictments against women in the province were still low (5%) in that era; but indictments against juveniles increased 50% between 1922 and 1945, following the Canadian average. While the conviction rate remained high in the province, a major shift had occurred in recorded criminality: personal crimes dropped from 17% to 11%; non-violent property crime dropped from 50% to 44%; but violent crime against property rose from 11% to 13%. These figures were not changed by the impact of World War II, and they were similar in the late 1940s. By 1939 the conviction rate had returned to its earlier 85%. The main culprit, however, was “social crime”: drunkenness, vagrancy, and prostitution—the remnants of the Great Depression.
Crime per capita was always lower in early Saskatchewan than in the rest of the country from the time in which criminal statistics were kept in 1891: the average rate of prosecutions per capita in the province was .07 in 1891 and 2.0 in 1911. The change came in the 1920s and 1930s, when the province doubled the per capita numbers in the rest of the country to 4.0. In these decades, the province tied its prairie neighbours with the highest rate of executions for capital crimes (65%), but had the lowest rate of pardons. Indictable offences in Regina, Moose Jaw, and Moosomin were among the highest in the country.
The first sign of reforming law and justice along more progressive lines came with prisons. The 1946 Penal Commission was a landmark in the history of the province’s Corrections; this was due in part to the effort of the CCF to humanize the criminal justice system. Punishment would now give way to rehabilitation. Crime prevention, probation, and the scientific treatment of offenders would be crucial to reduce the alarming growth of recidivism and the rising numbers of Natives who were being incarcerated. The ratio of Natives to non-Natives reached two to one per capita by 1946. Work camps and community service were seen as more helpful for vagrants, petty thieves, and drunks than jail time.
The Penal Commission was followed by the Saskatchewan Bill of Rights Act in 1947. One of the first in Canada, it brought freedom of conscience, opinion and Religion, freedom of assembly and association, and freedom against arbitrary arrest and detention to be respected by private persons. Consolidated into the Saskatchewan Human Rights Code of 1979, it is called the “Bill of Rights.” With enforcement in the Queen’s Bench, it brought equality rights to immigrants, organized labour, Natives, women, and the poor. An outcome of the progressive legislation of the 1930s spurred by immigrant Farming communities, it shifted the location of power for law and justice from the Legislature to the judiciary.
The Era of Industrial Capitalism, 1950–2000
Crime in the second half of the century remained active as the province coped with the socio-economic problems of farming communities, of deserted towns, and of growing cities that lacked strong economies. While the northern parts of the province were still largely undeveloped, the appearance of mining communities at places like Uranium City brought problems of their own: high wages were all too often accompanied by drunkenness, gambling, prostitution, and theft. A major change in criminal trials in the 1950s and 1960s was the significant rise in summary trials by police magistrates (PMs): an average of 960 indictable offences, and 30,000 summary offences, with the PM hearing 92% of all indictable offences. Of the latter, only 4% were acquitted, compared to 17% in the 1920s. There were examples of people pleading guilty with no criminal offence committed. The great growth of summary convictions suggests that too many important criminal cases were tried by PMs rather than by superior court judges.
The problem in the Cold War era was that the Criminal Code, which was growing by accretion, was piecemeal, often redundant, too discretionary, and lacking consistency in sentencing policies. More alternatives to imprisonment were needed, and different places for juvenile offenders. Thus in Saskatchewan too much “criminal activity” was being designed by social legislation. Mens rea (intent) had been brought full circle from the act itself, so that the act and not the intent was being prosecuted; finally, “attempted” acts were bringing more severe punishment than the real thing.
The Corrections Act of 1967 moved forward the idea of rehabilitation: from the prison, work training, probation and parole were directed to the community. Continually increasing numbers of juvenile, Aboriginal and Métis offenders, as well as females, caused social workers and social scientists who were moving into the corrections field to adopt new strategies. The trends were discouraging: by the 1970s Aboriginal and Métis males formed 65% of those admitted into prisons, while their female cohort represented 90%. The magnitude of rehabilitation had reached critical proportions.
The major figure in the criminal justice system of the late 20th century was E.M. “Ted” Culliton, Chief Justice of Saskatchewan from 1962 to 1981. Culliton made a reputation for allowing appeals against criminal convictions, a practice that few appeal courts made regular. A compassionate man, he encouraged personal appeals to his court, never increased a sentence, and often took account of good behaviour in sentencing—especially with Aboriginal people. A champion of criminal law reform, his goal was to rehabilitate offenders, not to inflict retributive punishment.
In the 1980s, with the passage of the Charter of Rights and Freedoms, the weaknesses of the criminal justice system in the province became apparent. Of ninety-two Charter cases before the Saskatchewan Court of Appeal, 80% were brought by the accused. A quarter of those cases found Charter violations, and over half of the lower court verdicts were reversed, although since the Supreme Court of Canada reversed some of those afterwards, the state of law and justice remained cloudy. Nonetheless, the Appeal Court was by the 1990s one of the most active per capita in Canada, and one of the most efficient. Criminal appeals by accused outnumbered those by the Crown ten to one, but the success rate was only 32% for the accused, and 80% for the Crown.
One of the remaining problems of the criminal law was the murky area of “social crime,” of which prostitution was a prime example. In an effort to curtail such activity in downtown areas and core neighbourhoods, the province was elated when Parliament enacted Bill C-49 in 1985. The bill was part of a larger problem: sexual offences. It made street solicitation in public for sexual services a criminal offence. While criminal offences in the province increased 45% from 1977 to 1985, sexual crimes increased by more than 300%; crimes by young offenders alone increased by 100%. Thus, in some small measure, policing prostitution was seen as a cutting edge of policing sexual offences in general.
The activity was astounding. The police increased their manpower in Regina and Saskatoon, manned elaborate sting operations, and developed dossiers on the ladies of the street. In the following year there were 421 arrests under the bill (303 in Regina alone). The numbers for Regina were 2.5 times those of Winnipeg, and five times those of Calgary. The results, however, were sobering: fines were $50-$200 for women who made an average of $55,000 yearly. Other sexual offences increased, including gang rapes and pimp fire-bomb wars. Thus while a measure of control was achieved, there was no reduction in “official crime.”
In January 1997, Regina became centre stage in Canada when Justice Ted Malone sentenced two university students to 6.5-year prison terms for killing a prostitute. The young men were cruising the streets of Regina looking for a prostitute when they encountered Pamela George of the Sakimay Reserve, who repeatedly rejected them. After one of them finally enticed her into his car with the other hiding in the trunk, “something went wrong” and she was found severely beaten in a ditch near the airport. The prosecution sought first-degree murder, but the jury found for manslaughter because their intent had been mitigated by drunkenness. Aboriginal communities, women’s groups, and the public saw in action a biased judge who charged the jury with the comment that she was “a prostitute.” Three years later, two Saskatoon police officers faced trial for assault and abandonment of three Aboriginals outside the city, two of whom froze to death. The result was that many saw two justice systems at work in Saskatchewan: one for Whites, and another for Aboriginals—symbolic of the racial discrimination that besets western Canadian society.
The century closed with the Saskatchewan Court of Appeal focused on the divisive subject of sentencing; divided on traditional versus alternative forms of punishment, the debate entered the public arena. The court had also responded to public debate in other areas of law and justice, such as: out-of-court statements are not inferior to statements given in court; no fresh evidence can be admitted where it is not weighty; juvenile court judges can transfer juveniles aged 15 to adult court for murder trials; sobriety tests do not trigger the right to legal counsel; and indecency laws can be enforced outside of equality rights against females swimming bare-breasted in public pools.
The major issues concerning law and justice heading into the 21st century are civil rights, marginalized and minority groups, and the criminal justice system. For Aboriginals, cases are heard where legal aid lawyers have little time to research them, interpreters may not know the terminology, and alternative punishments are few. For many ethnic minority groups, offenders should be seen as part of a web of interrelationships, not as individuals. Anti-social acts should be separated from historic crimes (the Ten Commandments), and treated within the complex behaviours that caused them.
One of the major problems confronting law and justice in Saskatchewan concerns Aboriginal people. The population of northern Saskatchewan is nearly 60% Aboriginal (much higher than in neighbouring prairie provinces, although with a similar percentage under the age of 16). Nearly 70% are on welfare, compared to less than 6% for non-Aboriginals; and their alcohol-related offences are nearly twenty times more frequent than for the rest of the population. Aboriginal women are charged with offences ten times more than non-Aboriginal women, and there are eight times as many Aboriginals in jail as non-Aboriginals. Clearly, this is a problem in law and justice—and in society—that has to be confronted. In a colloquium on “Empty Promises,” referring to the Crown’s promises to First Nations in the Proclamation of 1763, it was agreed that the over-representation of Aboriginals in prisons was not a result of discriminatory sentencing practices, but of complex factors that were beyond statutory remedy; one needed more relaxed standards of admissibility in the hands of judges for them to act upon the relevant information.
Evidence provided by Matthias Leonardy, writing at the end of the 20th century, suggests that the vicious circle of crime can only be ended when First Nations see the restoration of peace and harmony through mediation and reconciliation in their communities. It can be suggested that their Aboriginal rights are embedded in English and Canadian law, and that those rights are inherent ones—not contingent upon acts of government. Thus some form of delegated jurisdiction, such as the Peacemaker Court of Navajo customary law in the United States, might curtail that vicious circle where other efforts have failed. It may also provide the local discretion that lay behind the origins of law and justice in Saskatchewan. According to Judge Arnot, the successors of Britain’s last 19th century colonial war (the Riel Rebellion) must now rebuild the country that Poundmaker dreamed of.
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Louis A. KnaflaPrint Entry