Saturday, 21 March 2009

I am bound to say…

Shumah, the jury have found you guilty of the wilful murder of Louis Bee I am bound [?] to say. I therefore pronounced sentence of death to take place on 16 January next." [Judge Drake's Bench Book, 15 November 1890]

Hamar Foster, Professor of Law at the University of Victoria advised:
If Slumach was charged with murder and convicted, the judge had no option other than to impose the death penalty. This is something many people do not understand.
For example, although I have often heard Begbie described as a “hanging judge,” that is accurate only in the colloquial sense, i.e., that he was impatient with lenient juries or juries he felt were not doing their duty (and even then some of his irritation was for show).
What I mean is that Begbie did not arrest the accused, lay the charges, prosecute the case or even convict the accused (the jury did that). And in a murder case he had no choice but to sentence a convicted murderer to death. His only role in sentencing was confined to recommending to the executive that the death penalty be commuted or that the law “be allowed to take its course.”
And Begbie recommended commutation in many cases, especially those involving aboriginal prisoners. The most notorious exception was in 1864, when he decided not to recommend clemency for the Tsilhqot'in chiefs who were tried and convicted for their role in the Tsilhqot'in (Chilcotin) war of earlier that year. But this was a highly political case, and it seems likely that any recommendation for clemency would have been ignored.
In Slumach’s case there is no evidence that Judge Drake made a recommendation for leniency.

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