2. In Canada

Canada is clearly part of the larger development of criminal justice in the West and the Common law. The origins of criminal justice in Canada reveal a little known ancien régime history, notably in Nouvelle France. The system has resolutely moved on from some of these practices, and one side of the story of the development of criminal justice in Canada is towards more protection for defendants, and a generally less repressive system. Canada also shares with Australia, New Zealand and the United States the fact that the development of a system of criminal justice was based on the erasure of all indigenous legal traditions from positive law. In fact, the criminal justice system was an integral part of the colonial project, reflecting an incomprehension of alternative legal traditions, even as it sought to extend protective liberal principles to all. By and large, the criminal justice's system discourse about itself and the reality of its often systemically discriminatory practice remain. The history of criminal justice in Canada is the history of remarkable intellectual moments such as the codification of the criminal law in a common law jurisdiction, but also has a darker side such as the litany of cases involving minorities as part of what were sometimes blatantly political trials. One of the questions is the extent to which the colonial, racist and misogynistic roots of Canadian criminal justice continue to influence its development, or at least provide intellectual keys to understand some of its blind spots. When doing the readings, remember that many of these cases are evidently no longer valid law, what matters is to understand what legal and conceptual assumptions made them possible at the time.

Further Reading:

• Lewthwaite, Susan, Tina Loo & J Phillips. Essays in the History of Canadian Law: Crime and Criminal Justice in Canadian History (University of Toronto Press, 2015).

• Wright, Barry. “Criminal Law Codification and Imperial Projects: The Self-Governing Jurisdiction Codes of the 1890’s” (2008) 12 Legal Hist 19.

• Kasirer, Nicholas. “Canada’s Criminal Law Codification Viewed and Reviewed” (1989) 35 McGill L J 841.

• “Fyson, The Biases of Ancien Régime Justice.” Accessed September 28, 2016.

• Walters, Mark D. “The Extension of Colonial Criminal Jurisdiction over the Aboriginal Peoples of Upper Canada: Reconsidering the Shawanakiskie Case (1822-26).” The University of Toronto Law Journal 46, no. 2 (1996): 273–310.

  • Morel, André. “Réception Du Droit Criminel Anglais Au Québec (1760-1892), La.” Revue Juridique Themis 13 (1978): 449–542.

• And on the pain of banishment, from an 1842 song following the Lower Canada rebellion and banishment of many of its leaders: