Saturday, 21 March 2009

Slumach and the law

Professor Hamar Foster teaches Legal Process, Property, Criminal Law, the Law of Evidence, Legal History and Aboriginal Law at the University of Victoria.
He kindly provided an answer to the questions in the blog entry of 15 February: “If Canada's first criminal code came into force in 1892, under what code was Slumach tried and convicted. Was the death by hanging the penalty for all culpable homicide without distinction? Was there an equivalent to "manslaughter?”
The short answer to your question is that between 1849 and 1871 English criminal law, as modified by the colonial legislature and by local circumstances, applied in the colony of BC. Between 1871 and 1892 English criminal law continued to apply in BC, but as modified by dominion (federal) criminal legislation (some of which was not made to apply to BC until after 1871). This means that someone charged with (for example) murder in BC between 1871 and 1892 would be charged under dominion legislation if there was any, or charged with the common law crime of murder if there was not.
I would have to check for the precise time period, but generally in those days there was simply murder and manslaughter. Murder carried a mandatory death penalty, manslaughter did not. The accused could not give sworn testimony until 1892. And until the 1930s, once the crown had shown the deceased died as a result of an act of the accused, the burden shifted to the accused to show, on a balance of probabilities, that the killing was not intentional or that he had some other affirmative defence.

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