19th Century Ontario Court Procedures

First and foremost, I should explain that my knowledge of Canadian legal history is mediocre at best. For example, during a recent conversation about capital punishment, a friend asked me when the last hanging in Canada was. “Uhhh…I want to say the 1940s?” Turns out it was on December 11, 1962.

With this in mind, in addition to the fact that my workplace was a courthouse and jail (for over 100 years!)—I have a number of basic questions in regards to legal procedures in Ontario during the late 19th century. How were the court procedures during this time established and how similar were they to England’s? How would a criminal trial be set-up as opposed to a civil trial? Where would the lawyers, court-reporter, guards, and other court personnel sit? Where were prisoners kept before the trial? What did prisoners wear? Would they change for Court? Finally, why did trials reportedly take much less time than they do today?

In “Ontario Courts and Procedures I and II” (1914), Herbert Harley, an American lawyer, gave a glowing account of the legal system in Ontario to the readers of the Michigan Law Review. He explained to his readers that the court procedures of late 19th century Ontario were established by the Judicature Act of 1881 and matched that of both England and Wales; whose procedures had operated in the same fashion for forty years by that point. After 1737, in English courtrooms jurors were always seated to the right of the accused, whereas seated at a table below where the judges sat were clerks, lawyers, and the writers who took the shorthand notes which formed the basis of the proceedings. The jury sits on same side in both civil and criminal courts. Also, given that no courthouse acted in isolation, the court procedures of the various counties that made up Ontario would have all followed the same structure. Until 1949, Great Britain was the ultimate authority in Canadian law. After that point, the Supreme Court of Canada finally became the highest legal body in the country.


Old Bailey Courtroom, ground floor of Victoria Hall (c. 1960)
Cobourg, Ontario
(This room is modeled after the Old Bailey in London’s criminal courts).

Given that the trial process was much faster in the late 19th century, the accused would not await trial for a lengthy period of time. Following their arrest, within twenty-four hours of arriving at the jail the accused would be brought before the County Court judge, told the nature of their charge, and given the option of a trial with or without a jury. As such, the accused would be kept in the jail leading up to their trial and they would wear their own clothes. Jail uniforms were reserved for convicted prisoners.


Middlesex County Court House (C. 1895)
London, Ontario

The main reason that trial lengths were much shorter in the 19th century is because the legal process was quite different back then. As previously mentioned, twenty four hours was roughly the time it took to go from arrest to standing before a judge. The legal backlog that we see today in Ontario’s courts was nonexistent thanks in part to the province having a smaller population at the time. Few murder trials lasted more than “two days” as both the prosecution and defense were limited to a maximum of five medical experts to call upon. Juries could be eliminated, which according to our late American fan, Herbert Harley, was brought about for the advantage to the accused with the purpose of a swift resolution before a magistrate or County court judge. While the right to waive trial by jury still exists today, it is estimated that half of the cases that occurred in Ontario courthouses up to 1914 involved the defendant waiving their right to trial by jury. Undoubtedly this helped keep the court system running swiftly. However, from a 21st century perspective, these trials placed defendants at a great disadvantage.

For more in-depth information (such as court administration records and specific trial proceedings), those interested can look into requesting material from the Archives of Ontario, which holds a multitude of court records from the 19th and 20th centuries.

The Don Jail (c. 1860s)

Sources:

Bartley, David, English Criminal Justice in the 19th Century, London: Hambledon Press, 1998.

Gall, G.L, The Canadian Legal System, 5th ed, Toronto: Carswell, 2004.

Harley, Herbert, “Ontario Courts and Procedure,” Michigan Law Review 12, 5 (Mar 1914), 339-361

Harley, Herbert, “Ontario Courts and Procedure: II,” Michigan Law Review 12, 6 (Apr 1914), 447-466

Old Bailey Proceedings Online, “History of The Old Bailey Courthouse,” http://www.oldbaileyonline.org/static/The-old-bailey.jsp#courtroom

The Supreme Court of Canada, “Creation and Beginnings of the Court,” http://www.scc-csc.gc.ca/court-cour/creation-eng.aspx

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