Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 68 of 86)
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signed has expressed are concurred in by His Honour in Council, a copy of this Report
be forthwith transmitted to the Secretary of State, with a copy of the Act passed on the
subject at the recent session of the Legislature.

O. MOWAT.

March 15th, 1880.



Order in Council, approved by the Lieutenant-Governor, the 15th day of

March, 1880.*

The Committee of Council advise that your Honour do approve of the annexed re-
port of the Honourable the Attorney-General with respect to a despatch of the Under-
Secretary of State, dated the 14th day of February, having reference to an Act of the
Legislature of Ontario, entitled ''An Act respecting the Administration of Justice in the
Northerly and Westerly parts of Ontario," being 42 Victoria, chapter 19.



Certified.



G. Scott,

Clerk ExeciUive Council, Ontario.



The Lieutenant-Governor to the Secretary of State.!

Government House,

Toronto, I5th March, 1880.

Sir, — I have the honour to transmit herewith for the information of His Ezoellencj
the €U)vemor-General in Council a copy of an Order in Council approved by me this day,
together with the annexed report of the Honourable the Attorney-General with respect
to the despatch of the Under-Secretary of State, dated 14th February last, having
reference to an Act of the Legisl|iture of Ontario, entitled, "An Act respecting the
Administration of Justice in the Northerly and Westerly parts of Ontario," being
42 Victoria, chapter 19.

I have the honour to be Sir,

Your obedient servant,

D. A. Macdonald,

LieiUenani-Govemor.
The Honourable the Secretary of State,
Ottawa.



Further Report of the Minister of Justice. |

Ottawa, 17th March, 1880.

I have the honour to report — That, under the Order in Counoil of the 12di
February, respecting an Act passed by the Legislature of Ontario at its scesion of 1879,
intituled ''An Act respecting the Administration of Justice in the Nartheily ao^
Westerly parts of Ontario," it was provided that, unless the same were repealed vithiB
the time for disallowance, it should oe disallowed.

* Sees. Papers, Ont, 1881, No. 30, p. 11. + IbitL, p. 10. t Ibid., p. 15.

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FURTHER REPORT OF THE MINISTER OF JUSTICE THEREON. 393



A oopy of my Report, and of the Order in Goanoil passed thereon, were transmitted
in due course to the Ontario Government. A reply has just now heen received, from
which it would appear that the Act has not heen repealed, but that another Act, making
provision for the administration of justice in the locality, has been passed, but which
Act is not to go into operation unless and until the Act now under consideration be
disallowed.

The Attorney-General of Ontario states, that '< the new Act confines the jurisdiction
of stipendiary magistrates, as regards subject-matter and amount, to the limits provided
for by the law in force before Oonfederation, and avoids any disputable reference to the
extent of the territory within which the Act is to operate, leaving that question to be
wholly determined as may be by the law and the right."

I have not yet had an opportunity of seeing this Act, and therefore pass no opinion
with respect to it. It will have to be considered and reported upon in the usual way.

Pursuant to the provisions of the Order in Oonnoil of the 12tii February, I think
the Act passed by the Legislature of the Province of Ontario, first above referred to,
should be disallowed, and I recommend accordingly.

Before closing this repcHrt I desire to refer to some of the remarks of the Attorney-
General of Ontario with respect to the Act

In my previous report I pointed out two grounds upon which it was necessary to
take action with respect to the allowance or disfdlowance : the first being on account of
its assuming to make provision for the administration of justice over territory the right
of Ontario to which is not admitted by this Government ; the second was, that the Act
encroached upon the powers of the Dominion Government with respect to the appoint-
ment of judges.

It is unnecessary to reply to the arguments adduced by the Attorney-General
with respect to the boundaries of Ontario, as any discussion thereon, upon a reference
of this land, would seem to be inopportune.

With respect to the second ground, however, the Attorney-General points out that
the provisions respecting the *• District Court '* referred to in the Act were intended to
apply only to the court presided over by the jud^e resident in Sault Ste. Marie, who
received his appointment before Oonfederation, and whose successor would have to be
appointed by the Governor-General, and that the provisions respecting^ this court
do not apply to the court presided over by the stipendiary magistrates referred to in
the Act.

In this view, so much of the Act as relates to that District Court would not seem to
be open to the same objections as those portions which refer to the stipendiary magis-
trates, but the o'bjections pointed out in my previous report to those portions of the Act
which refer to the stipendiary magistrates and the courts presided over by them still
remain, and of themselves, in my opinion, would warrant the disallowance of the Act.

The Attorney- General remarks, in referring to the disputed boundary question, that
'' the Minister of Justice does not, however, advise the disallowance of the Act on this
account, but advises its disallowance upon the grounds of the other objection which he
suggests, namely, that the Act seems to encroach upon the powers of the Dominion
Government with respect to the appointment of judges.'*

It would seem immaterial upon which of the two grounds the disallowance was
recommended ; but I would point out that the recommendation in my report was a
general one, and was not confined to either ground.

Jas. McDonald,

Minister of Justice,



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394 DISSALLOWANCE OF ACT KESPBCTING ADMINISTRATION OF JUSTICE, ETC.



Order of the Governor-General in Council.*

Government House,

Ottawa, Monday, 22nd day of Marob, 1880.

Present — His Excellency the Oovemor-Oeneral in Gonnpil.

Whereas the Lieutenant-Governor of the Province of Ontario, with the Legislative
Assembly of that Province, did, on the 11th day of March, 1879, pass an Act (chapter
19), intituled **An Act respecting the Adminisiration of Justice in the Northerly and
Westerly parts of Ontario ; "

And whereas the said Act has been laid before the Governor-General in Council,
together vrith a Report from the Minister of Justice, setting forth that he is of opinion
that it was not competent for the Legislature of the Province of Ontario to pass such
Act, and therefore recommending that the said Act should not receive the confirmatioD
of the Governor-General ;

His Excellency the Governor- General has thereupon tiiis day been pleased, by and
with the advice of his Privy Gouncil, to declare his disallowance of the said Act, and
the same is hereby disallowed accordingly. .

Whereof the Lieutenant-Governor of the Province of Ontario, and all other persons
whom it may concern, are to take notice and govern themselves accordingly.

J. O. CoTi,

Clerkf Privy Council,



Certificate of the Governor-General.^

I, Sir John Douglas Sutherland Campbell, commonly called the Marquis of Lome,
Governor-General of Canada, do hereby certify that the Act passed by the Legislature
of Ontario the 11th day of March, 1879 (chapter 19), intituled '* An Act respecting the
Administration of Justice in t^e Northerly and Westerly parts of Ontario,** was received
by me on the 26th day of March, 1879.

Given under my hand and seal this twenty-second day of March, 1880.

LORNE

[Seal.]



The Secretary of State to the Lieutenant-Governor.*

Ottawa, 22nd March, 1880.

Sir, — I have the honour to transmit to you herewith, for the information of your
Government, an Order of His Excellency the Govlarnor-General in Council disallowing
an Act passed by the Legislature of the Province of Ontario on the 11th day of March,
1879 (chapter 19), intituled '* An Act respecting the Administration of Justice in the
Northerly and Westerly parts of Ontario.**

I have the honour to be. Sir,

Tour obedient servant,

J. C. AlKINS,

Secretary qfJStale,

His Honour the Lieutenant-Governor of Ontario,
Toronto.

♦ Sew. Pftpere, Ont, 1881, No. 30, p. 16.

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PB0P08KD BOUNDARIES OF RAT PORTAGE DIVISION COURT DIVISION. 896



Thb Libutbnant-Govbbnor to THE Sbobbtart of State.*

Government House,

ToRONTb, 25th March, 1880.

Sir, — Adverting to your letter of the 22nd March, forwarding an Order of Hia
Excellency the Governor-General in Cooncil, disallowing an Act passed hy the Legis-
lature of this Province on the 11th instant, intitoled *' An Act respecting tlie Adminis-
tration of Justice in the Northerly and Westerly parts of Ontario," I have, the honour
to request you to forward to me a copy of the Report of the Minister of Justice therein
alluded to. ^

I have the honour to be, Sir,

Your obedient servant, •

D. A. Maodomald,

LietUeruurU'Govemor.
The Honourable the Secretary of State (Canada),
Ottawa.



Thb Seorbtary of State to thb Li buten ant-Go vERNOR.t

Ottawa, 30i^ March, 1880.

Sib, — In compliance with the request contained in your despatch of the 25th inst,
I have the honour to transmit to you herewith a copy of the Report of the Honourable
the Minister of Justice upon which the Order of His Excellency the Governor-General
of the 22nd inst, disallowing the Act of the Legislature of the Province of Ontario,
entitled '' An Act respecting Administration of Justice in the Northerly and Westerly
parts of Ontario," was passed.

I have the honour to be, Sir,

Your obedient servant,

J. C. AlKINS,

Secretary o/Staie.
His Honour the Lieutenant-Governor of Ontario.



Mr. ,Lyon, Stipbndiary Magistrate, to thb Deputy Attorney-General, Ontario. I

Rat Portage, April 15th, 1880.
J. G. Soott, Esq.,

DeptUy Attorney-General.

Sir,— I received your letter of the 6th instant to-day. I received your letter of the
16th Msurch last by the former ma^il, but as the carrier returned immediately I had no
opportunity of answering it ; and further, I considered that any description that I could
give you of the divisions for Division Court purposes would be of little use without a
map. I have had one prepared, and herewith enclose it to you. You will see from the
map the intention is that all who can come conveniently to Rat Portage on Division
Court business by the Pacific Railway and the waters running into the Lake of the

• Sees. Papers, Ont., 1881, No. 80/p. 16. ilbid., p. 17. itSess Papers, Ont, 1882, No. 23.

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.396 PROPOSAL OF ATTORNEY-GEN. WITH RESPECT TO INTERIM LEGISLATION, 1880 :



Woods from the n(Mrth-east, as well as any residents to the west, will belong to the Bat
Portage Division ; and all those residing south of the railway from the line on the map
or the wafcers that flow into Rainy Lake and Rainy River will belong to the Fort Frances
Division. •

From my knowledge of the country, I believe it is the best division of the territory
that can be mada I also have the opinion of Mr. Mather, the Hudson's Bay Factor, and
others, who are of the same opinion.

I am Sir,



Your obedient servant,

W. D. Lyox.



The Attorney-General of Ontario to the Minister op Justice with respect to

Interim Legislation.*

Toronto, April 23rd, 1880.

Dear Sir, — Sinoe our conversation at Ottawa with reference to the steps to be taken
for the administration of justice in the disputed territory in the North- West, I have given
to the matter some further consideration, and as your Government is not yet prepared to
concede our right to the teiritory, I have drafted a Bill, which I send herewith, embody-
ing the provisions which seem to me necessary or desirable for the government of the
territory in the meantime, j*

The Supreme Court has decided that your Parliament has power to pass a prohibi-
tory liquor law, and I presume it is of special importance that no intoxicating liqaors
should be sold along the line of the Pacific Railway. Your claim to the territory up to
the meridian of the confluence of the Ohio and Mississippi implies a claim that Uie Eee-
watin law as to intoxicants extends to that meridian j but as by the decision of the
Supreme C!ourt you have power to make that law or a similar law applicable, whether
your claim to the territory is well founded or not, I suggest an enactment declaring in
express terms that the Act, or such modification of it as you may prefer, is to have effect
whether such territory is within Ontario or Keewatin.

If you do not consider it advisable that a prohibitory law should be in force so far
east, then, to avoid clashing, I suggest that Parliament confer on the License Commis-
sioners of Ontario for Thunder Bay the right to issue licensed in so much of the disputed
territory as is not to be covered by the prohibition.

As the jurisdiction in regard to criminal procedure in every part of the DominioD
belongs to the Dominion Parliament, I suggest as, on the whole, the more convenient
course with respect to the disputed territory, that, in the territory west of what was
formerly the provisional boundary, ordinary criminal cases be disposed of according to the
procedure in force at Keewatin, and in the territory east of the line according to the
procedure in force in other parts of Ontario. I suggest this as a rule to be acted upon as
far as practicable without being embodied in a legislative enactment ; authority to be
given to justices, etc., of Keewatin and of Thunder Bay or Algoma, to act in any part of
the disputed territory.

A Bill now before Parliament provides for the committal of criminals to gaol either
at Prince Arthur's Landing or at Winnipeg. To provide for oases where the aammary
prooedure applicable to Keewatin is not considered sufl&oient, you might enact that any
person charged with crime may be tried in either Muiitoba or Ontario, and in any coumty
or district of either of these Provinces.

Tou are aware that a man named Horn is in custody at Prince Arthur's Landing,
charged with murder. I do not at present know sufficient of the facts of the case to



♦ Seea. Pftp«n> Ont., 1881, No. 30, p. 17.

t [For this draft BUI, see p. 897, jMff.— G.^E.'L.]

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DRAFT BILL PROVIDING FOB ADMIN. OF JUSTICE IN DISPUTED TERRirORY. 397



determine whether it will be more convenient to try him where the murder took place or
at Prince Arthur's Landing. If the latter course is decided upon, the trial had better
be before Comijuissioners of Oyer and Terminer. The Chief Justice of Manitoba would not
care to come so far east from Winnipeg in order to try the case. I do not know what
ordinances have been issued for the administration of justice in Keew»tin, but I assume
that a murder case ought to be tried by a judga In case you issue a commission for this
purpose, we would issue a commission to tiie same Commissioners and in the same terms,
according to the course taken under preceding Governments, to avoid unnecessary ques-
tions as to the proper authority for issuing such commissions.

The Court of Queen's Bench, in the case of Regina vs, Amer (42 U. C. R., 39 i),
decided that the District Judge of Algoma could be commissioned to hold a Court of Oyer
and Terminer and General Gaol Delivery, but Mr. Justice Cameron was counsel for the
Amers, and was not satisfied with the judgment ; he might take the same view as ar
judge ; and there is a possibility that the Supreme Court mi^t not decide as our Court
of Queen's Bench did. The point taken was, that the Act C. S. U. C, cap. 11, sec. 2,
prevented the Crown from issuing a. Commission of Oyer and Terminer addressed to any
one not named in that section, and that as a Distript Judge is not expressly named, Judge
McCrae, the District Judge, could not be nominated. As it is not likely ^that our
Superior Court judges will go so far west to hold Assizes for some years to oome, I sug-
gest an Act settling this question so far as Parliament has jurisdiction to do ^o. I send a
short Bill for this purpose.

In regard to civil matters, to assume or declare that ^he Keewatin law as* to civic
procedure shall be in force in any paert of the disputed territory would put it in the power
of any suitor to raise the boundary question, as, if our claim of boundary is correct, such
an enactment ^ould be tUtra vires. I think, therefore, that for the determination of
civil rights, you will find it the ccmvenient and indeed only practicable course, to confirm,
in reference to the disputed territory, the jurisdiction of our stipendiary magistrate (sec.
43, Vict. (Sap. 1 2, sec. 3), and to provide that matters beyond his jurisdiction shaU be
determined in the District Court of Algoma where the cause of action is within the juris-
diction of that Court (lb. sec. 5). Where the matter is beyond the jurisdiction of the
District Court of Algoma, authority to try in any Superior Court of Ontario, and in any
county, should be given.

I presume, since your Government dedines to admit our title, you will pay the ex-
penses of the administration of justice in the disputed territory so long as it is disputed.

Yours truly,

O. Mow AT.
The Honourable James McDonald, Minister of Justice^

Ottawa.



Draft Bill, enclosed in the Lbttbii op the Attorney-General op Ontario to the
Minister op Justice. 23ri> April, 1880.*

[Snoh of the piovisiont <^ this draft Bill m are printed in the ordinary Roman character were adopted
by the Minister of Justice and incorporated in the Dominion Act, 43 Vic, cap. 36 ; tiioee provirions wnich
are printed in Italics were not so incorporated. The Dominion Act in question will be found at p.400, pogt.
-G.B.L.1

DRAFT BILL.

An Act por the Administration op Justice in the Territory in Dispute between
THE Governments op the Province op Ontario and op the Dominion op Canada.

Whereas the territory described in the schedule hereto is claimed by the Govern-
ment of Ontario as being within the said Province ; and whereas such claim is dis-
puted ; and whereas the Parliament of Oanada is desirous of making suitable provision

[* See the letter, p. 396, onto.— G. E. L.]

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398 DRAFT BILL PROVIDUfG FOR ADBflN. OF JUSTICE IN DISPUTED TERRITORY.



for the administration of juBtice within the said territory until the dispute is deter-
mined :

Therefore Her Majesty, by and with the advice and consent of the Senate and
House of Commons of Canada, enacts as follows : —

1. All crimes or offences committed in any part of the said territory, may be inquired
of, tried and punished within any county or district in the Province of Ontario, or the
Province of Manitoba, or in the District of Keewatin, and such crime or offence shall be
within the jurisdiction of any court, judge, magistrate, or magistrates, or justice or
justices, or other functionary having jurisdiction over crimes or offences of the like nature
committed within the limits of the county or district in which such crime or offence is
prosecuted ; and such court, judge, magistrate or magistrates, justice or justices, or
other functionary, shall proceed thereon by way of preliminary investigation, and to
trial, judgment and execution, or other punishment, for such crime or offence, in the same
manner as if such crime or offence had been committed within the county or district
where such trial is had.

2. Such crime or offence shall be sufficiently laid and charged, whether it is laM
and charged to have been committed in Ontario or in Keewatin, and any sentence which
might have been imposed upon the offender, had the offence been committed either in an
undisputed part of Ontario or in an undisputed part of Keewatin, may be imposed upon
an offender convicted under this Act.

3. The two next preceding sections shall apply to any crime or offence heretofore
committed as well as to every cjrime or offence hereafter committed in the said territory.

4. Where any person charged with the commission of any crime or offence within
the territory above described, is in custody in any gaol within the Province of On-
tario, or within the Province of Manitoba, charged with the said crime or offence, and it
is intended that such person shall be tried in a Province other than the Province in a
gaol of which he is confined, or in a different part of the same Province, then any judge
of any Superior Court of the Province, in a gaol of which such prisoner is confined, having
criminal jurisdiction, or any such court, on application by or on behalf of the Minister
of Justice, or of the Attorney-General of Ontario, or in case the prisoner is in custody
at Prince Arthur's Landing, and it is intended to try him at Sault Ste. Marie, then
the judge of the District of Algoma, on application as aforesaid, may make an order upon
the keeper of such gaol to deliver the said prisoner to the person named in such order to
receive him ; and such person shall, at the time prescribed in such order, convey such
prisoner to the place at which he is to be tried, there to remain in custody subject to the
order of the court by which it is intended he shall be tried^ or of any other oonrt which
may have jurisdiction to try him. In case the prisoner is confined in any gaol or lock-up
in the said disputed territory, any judge of a Superior Court of Ontario or MaaitolM
having criminal jusriEK^ction may make the like order.

5. The judge or court on granting the said order, may, if the judge or court
thinks fit, direct that unless the prisoner is tried within a time limited in the said order,
he shall be either discharged from custody on his own recognizance, or on bail, or
returned forthwith to the said gaol from which he was taken, as the said judge or court
may consider proper, and the terms of the said order shall bo duly obeyed ; prorided
that the judge, or any other judge of the same court, or the court, may, at any time,
upon application made in that behalf, vary the terms of the said order.

6. The DUtriet Court of the District of Algoma and Dimsion Courts heretofore
established or which may be hereafter established Jor the District of Thunder Bay^ and the
judges and officers of such courts, and the sheriff of the District of Thunder Bay, shall
have authority and jurisdiction within and over the said territory, in the same manner
and to ths same extent as such court, judges, sheriff, and officers would have authority and
jurisdiction within and over such territory if the right of Ontario thereto was undoubted
and undisputed; and the process of the said courts mty be executed therein,

7. Causes of action arising within the said territory, but not within the jwrisdietion
of the said District or Division Courts, may be prosecuted and tried in any Superior Court
of the Province of Ontario, and in any county or district in the said Province, and the pro-
cess of the said courts may be executed therein.



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DRAFT BILL PROVIDINO FOR ADMIN. OF JUSTICE IN DISPUTED TBRRITOKY. '399



8. In aU mattera of carUrov&rsy in the courts mentioned in the two next preceding
MCtionSy the law$ of the Province of Ontario in force in the said District of Thunder Bay
shaU govern,

9. The seventy-Jourth section, headed " Prohibition of Intoodcants" of the Act passed
in the thirty-eighth year of Her Majesty^s reign, entitled '* An Act to amend and consoli-
date the laws respecting the North- West Territories,^^ shall, with the substitiUion of '* the
Lieutenant-Governor of Ontario," for " the Lieutenant-Go oerTior of the said territories or of
the lAeutenan^Govemor of Manitoba, under regulations to be from time to time made by
the Governor in Council," where srich words occur in the said section, as amended by the Act
passed in the thirtyrninth year of Hefi* Majestifs reign, and chaptered twenty-two, apply to
and be in force in aU that portion of the said territory hereinbefore described lying west of

(In OMe preceding section does not ftpP^y. ^ ^ ^^ territory mentioned in the schedule, add the
following :— )

10. The provisions of the Revised Statute of Ontario, entitled ^^ An Act respecting
the sale of Fermented or Spirititous Liquors" shall, so far as the same ore in force in the
District of Thunder Bay, be in force in that part of the territory/ hereinbefore described lying
east of

as ^ sttch provisions were re-enacted herein with respect to such territory ; and the License
Commissioners appointed by the LieiUenant-Govemor of Ontario for the District of Thun-



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 68 of 86)